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Full text of "Annual Report Workers' Compensation Appeals Tribunal 1995-1996"

ANNUAL REPORT 
1995 AND 1996 



Ontario 



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Workers' Compensation 
Appeals Tribunal 



Tribunal d'appel 

des accidents du travail 



ANNUAL REPORT 
1995 AND 1996 




Ontario 




Ontario Workers' Compensation Appeals Tribunal 

505 University Ave, 7th Floor 

Toronto, Ontario 

M5G 1X4 



ISSN: 1181-6031 



© 1997 



Digitized by the Internet Archive 
in 2013 



http://archive.org/details/annualreport9596onta_0 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Contents 



INTRODUCTION v 

REPORT OF THE TRIBUNAL CHAIR 

THE TRIBUNAL'S PERFORMANCE 1 

TRIBUNAL RESTRUCTURING 2 

CASELOAD - FUTURE PROSPECTS 6 

PLANNING FOR THE FUTURE 9 

REVIEW OF THE WORKERS' COMPENSATION SYSTEM 

DURING 1995 - 1996 11 

TERMINATION OF THE CHAIR'S EX OFFICIO POSITION 

ON THE WCB BOARD OF DIRECTORS 12 

THE BURGEONING CONSULTANT INDUSTRY AND THE 

NEED FOR A CODE OF CONDUCT 12 

THE CROSS- APPOINTMENTS PILOT PROJECT 13 

COLLECTIVE BARGAINING AT THE TRIBUNAL 14 

HIGHLIGHTS OF THE 1995 - 1996 CASE ISSUES 14 

Re-employment 15 

Penalties under the Re-employment Provisions 17 

Future Economic Loss Awards and Supplements 17 

Non-economic Loss Awards 19 

Transitional Supplements 21 

Occupational Stress 22 

Occupational Disease 23 

Chronic Pain and Fibromyalgia 24 

Experience Rating of Employers (NEER) 25 

Other Employer Issues 26 

Miscellaneous 26 

JUDICIAL REVIEW APPLICATIONS 28 

OTHER COURT MATTERS 29 

OMBUDSMAN COMPLAINTS 29 

THE TRIBUNAL REPORT 

VICE-CHAIRS, MEMBERS AND STAFF 31 

OFFICE OF COUNSEL TO THE CHAIR 31 

TRIBUNAL COUNSEL OFFICE 31 

Intake 32 

Pre-hearing Legal Workers 32 

Lawyers 32 

Post-hearing Legal Workers 33 



in 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Medical Liaison Office 33 

MLO and the Medical Component 34 

SCHEDULING 35 

Regional Hearing Rooms 35 

INFORMATION DEPARTMENT 36 

Library Services 36 

Publications Department 38 

SYSTEMS DEPARTMENT 39 

STATISTICAL SUMMARY 40 

Cases Received 40 

Case Dispositions 40 

Inventory - Backlog 42 

Case Completion Times 43 

Hearings and Decisions 43 

Representation at Hearings 44 

FINANCIAL MATTERS 44 

APPENDIX A 

DECISION RELEASE POLICY 55 

APPENDIX B 

MINISTRY OF LABOUR CROSS- APPOINTMENT PILOT PROJECT 

Report to the Minister of Labour 59 

APPENDIX C 

PRACTICE DIRECTION: FEES AND EXPENSES 64 

APPENDIX D 

VICE-CHAIRS AND MEMBERS IN 1995 AND 1996 66 

VICE-CHAIRS AND MEMBERS - 

EXPIRED APPOINTMENTS AND RESIGNATIONS 68 

VICE-CHAIRS AND MEMBERS - REAPPOINTMENTS 68 

NEW APPOINTMENTS DURING 1995 AND 1996 68 

SENIOR STAFF 70 

MEDICAL COUNSELLORS 70 

APPENDIX E 

AUDITORS' REPORT AND FINANCIAL STATEMENTS 71 



IV 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Introduction 



The Workers' Compensation Appeals Tribunal is a tripartite tribunal that 
hears and decides appeals from the decisions of the Workers' Compensation 
Board. It is a separate and self-contained adjudicative institution, independent 
of the Board. 

This Report is the Tribunal Chair's and the Tribunal's annual report to the 
Minister of Labour and to the Tribunal's various constituencies. It describes the 
Tribunal's operational experience during the reporting period and covers 
matters which seem likely to be of special interest or concern to the Minister or 
to one or more of the Tribunal's constituencies. The reporting period for this 
particular report is not the usual one-year period but a two-year period, being 
the period from January 1, 1995, to December 31, 1996. 

This is the second time in the Tribunal's history that the "annual" report has 
covered a two-year period. (The first two-year report was the Annual Report for 
1992 and 1993.) The reason for combining the 1995 report with the 1996 report is 
as follows. 

When the government changed in June 1995, the Honourable Cam Jackson 
was appointed as Minister Without Portfolio Responsible for Workers' 
Compensation Reform. Minister Jackson forthwith embarked on a review of the 
system. Following an initial fact-gathering process during the fall of 1995, a 
Discussion Paper on New Directions for Workers' Compensation Reform was 
published in January 1996. After a further period of consultation, Minister 
Jackson's final report was published in June 1996. The report recommended a 
number of fundamental reforms. In November 1996, Bill 99 was tabled in the 
Legislature. 

Throughout this period, the Tribunal and its Chair were engaged in 
responding to the needs of the review process for information and comment 
respecting Tribunal matters. Thus, at the time when the 1995 Annual Report 
would traditionally have been written, the resources of the Tribunal were 
devoted to producing similar kinds of reports for the special purposes of the 
Jackson review. In these circumstances, it seemed reasonable to defer the 1995 
report and issue a combined report in 1996. 

The Appeals Tribunal's annual reports comprise, in effect, two reports: the 
Report of the Tribunal Chair and The Tribunal Report. The former reflects the 
personal observations and opinions of the Chair; the latter covers the Tribunal's 
activities and financial affairs, and any significant developments concerning its 
administrative policies and process. 



Workers 7 Compensation Appeals Tribunal Annual Report 1995 and 1996 



Report of the Tribunal Chair 



THE TRIBUNAL'S PERFORMANCE 

In the Chair's opinion, the overall quality of the Tribunal's decisions 
remained excellent in 1995 and 1996, and the Tribunal's hearing procedures and 
processes continued to be fair and effective. The Tribunal's efforts to increase 
production levels in response to ongoing and significant caseload increases 
were also very successful. In 1995, the total number of dispositions reached 
2,141 - 19% higher than the 1994 total - and in 1996 the total number of 
dispositions reached 2,512 - 40% over the 1994 figure. 

It may be noted that these production increases were achieved with 
relatively small increases in the Tribunal's expenditure. The Tribunal's total 
annual expenditure for 1996 was 2.87% higher than the 1994 expenditure and 
only 8.6% more than the 1991 expenditure - 1991 being the bench-mark year 
when the upward trend in the caseload first appeared. 

Regrettably, however, the production achievements were unable to match 
the increases in the incoming caseload. The intake increase in 1995 was 
relatively flat - approximately 6% above the 1994 figure, but in 1996 the total 
number of cases received reached 3,600 - 64% above the 1994 figure and 128% 
over the 1991 figure. 

Therefore, despite what in other circumstances might be considered a 
substantial success in improving the Tribunal's overall efficiency, the increases 
in incoming caseload in fact significantly outpaced the increases in the 
Tribunal's production. In 1996, the Tribunal received, on average, 100 more 
cases per month than it was able to dispose of (300 new cases per month versus 
200 dispositions). And, by the end of 1996, the Tribunal's total inventory had 
reached approximately 3,500 cases of which approximately 1,000 cases could be 
considered backlog. 

Unfortunately, however, the growth in the number of new cases received 
each year is not by any means the whole story as far as the Tribunal's workload 
increase is concerned. As mentioned in previous Annual Reports, the Tribunal's 
increasing workload since 1991 has involved not only increases in the number 
of cases but also a significant increase in the average complexity of those cases. 

The increase in the number of cases is the aspect of the workload increase 
that is most easily identified. However, the increase in the amount of work that 
is required on average for each case has been even more significant. One 
indicator of this is the proportion of the cases that fall within the "entitlement" 
category of cases. These are the core cases typically involving the resolution of 
serious and complex issues of fact and law. Since 1991, the proportion of 
entitlement cases to the total intake has increased dramatically - from 53% to 
76% (from 834 cases in 1991 to 2,819 cases in 1996). 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



But even those figures deal only with the increase in the number of the 
more serious types of cases. What we have also been experiencing is that the 
average complexity of the cases that fall into this category has increased. This 
latter development is more difficult to substantiate with specific data but to 
those working in the field, not only at the Tribunal but elsewhere, it is well 
understood that the 1990 amendments to the legislation [Workers' 
Compensation Amendment Act, 1989, S.O. 1989. c. 47] have introduced a degree 
of complexity that is much greater than had previously been experienced. This 
translates at the Tribunal into longer hearings, more post-hearing investigations 
and submissions, more difficult decision-making and longer decisions. 

As was to be expected, the growing disparity between what the Tribunal 
was able to produce and the cases it was receiving, and the resulting backlogs at 
various places in the Tribunal's processes, have led to substantial increases in 
the average turn-around times. 

An area of the Tribunal's performance of particular concern since 1994 has 
been the number of cases in which the release of the decision following 
completion of the hearing is unreasonably delayed. 

As indicated in the 1994 Annual Report, backlogged decision-making had 
been one of the significant consequences of the growth in the complexity of 
cases during 1993 and 1994. At the end of that reporting period, the Tribunal 
was in the final stages of developing a decision release policy that would ensure 
that decision-writing backlogs would not recur. The Tribunal's Decision Release 
Policy was published in February 1995. A copy of that policy may be found in 
Appendix A. 

Resolving the backlogs and bringing the Tribunal's decision-release 
performance into compliance with the policy has proven to be more difficult 
than anticipated. The general overload context in which the Tribunal and its 
panel chairs and members have been working during this reporting period has 
been a pervasive hindrance to that effort. By the end of 1996, the number of 
unreleased decisions outside the policy had been reduced to a total of 41. 

In the latter part of 1996, the Chair's Office introduced an automatic, 
multiple-step expediting process which should help in keeping the timeliness of 
decision writing under control. 



TRIBUNAL RESTRUCTURING 

The 1994 Annual Report described what it labelled the "1994 Restructuring 
Plan", which principally involved the introduction of a new case management 
focus led by a Case Management Team and the establishment of a dedicated 
Vocational Rehabilitation panel. See pages 4 to 6 of the 1994 Report. By the end 
of 1996, this was being referred to as Phase I of the Restructuring Plan. 

The Phase I plan was implemented beginning in 1995. The case 
management strategy, as developed by the Case Management Team, involved 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



an assortment of new approaches to the effective management and resolution of 
cases, supervised and directed at the front end of the process by an experienced 
Panel of adjudicators. This was the first time that the perspective of experienced 
adjudicators had been brought to bear, at an operational level, at the beginning 
of the Tribunal's preparation processes. 

The Case Management Team consisted of a standing, full-time tripartite 
Panel of the Tribunal assisted by a Tribunal Counsel Office lawyer. The Team, 
led by the Panel chair, had a broad mandate to review and restructure the 
Tribunal's pre-hearing case processing, with a view to finding innovative ways 
of resolving matters short of assigning it to a hearing panel for full hearing, and 
to ensuring that, where a hearing was unavoidable, cases would arrive at the 
hearing stage fully prepared for an efficient hearing. 

To assist with an early analysis of a case's likely needs from a process point of 
view, the Case Management Team developed a new Appeal Application. The 
Appeal Application form was designed to provide, in an efficient and timely way, 
the information base which the early review process required. It asked the 
appellant to say at the outset precisely what WCB decision was being appealed, 
what, in particular, the appellant thought was wrong with that decision and what 
specific remedy he or she would be looking for if the appeal were successful. 

Through a process of early review of all new cases, the Case Management 
Team pursued a number of particular goals. To begin with, it sought to identify 
cases which had arrived at the Tribunal prematurely (for instance, where there 
had been no final decision at the WCB so that the Tribunal did not have 
jurisdiction or where there were significant relevant issues that still had to be 
determined through the Board's adjudicative processes). Next, it attempted to 
ensure that only those cases which were ready for hearing were scheduled. For 
those cases which were not ready, the steps necessary to make them ready were 
identified and arrangements were made in conjunction with the parties to have 
those steps completed. It also tried to identify those cases that could be diverted 
from the Tribunal's mainstream processes to alternative, more expeditious 
hearing modes. 

The Team developed, for example, a process where with the consent of the 
parties a case would be "heard" only on the basis of the written record and 
written submissions - the so-called "written hearing". By the end of the 
reporting period, the Tribunal was identifying about 15% of its incoming cases 
as suitable for a written hearing and obtaining the parties' consent to such a 
hearing in about 80% of those cases. Written hearings have been shown to be 
significantly more efficient than traditional oral hearings. 

The Team also found it possible to categorize cases destined for an oral 
hearing by the expected length of the oral hearing, i.e., short-oral hearing cases 
or full-hearing cases. This led to efficiencies in the scheduling process and in the 
utilization of hearing rooms. 

It is important to note that the concept of early review of cases in pursuit of 
many of these same goals has always been a function performed by the 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Tribunal Counsel Office and that that function had been pursued over the years 
with considerable success. In recent years, we have traditionally been able to 
dispose of approximately 40% of our cases without the necessity of a hearing. 
However, the Phase I restructuring's involvement of senior adjudicators in a 
leadership role at the point of the initial case review brought a new perspective 
and a heightened authority to that review which energized the process and 
encouraged experimentation with new process concepts. 

The second major feature of the Phase I Restructuring Plan was the creation 
of a specialized Vocational Rehabilitation Team (VRT). The Team was 
comprised of a standing, tripartite Panel of experienced, full-time adjudicators 
assisted by a lawyer and legal worker from the Tribunal Counsel Office. The 
Team's mandate was to experiment with innovative approaches to dealing with 
vocational rehabilitation appeals. 

Appeals involving entitlement to vocational rehabilitation services and 
related issues were felt to be appropriate for an alternative approach for a 
number of reasons. Chief of these were the well understood benefits of early 
rehabilitation intervention, contrasted with the especially detrimental 
consequences, for the parties and the system, of unnecessary delays in the 
adjudication of such cases. 

The Team approach to processing this type of appeal proved highly 
effective, both in the pre-hearing processing of appeals and at the hearing. The 
Panel's instructions to the TCO members of the Team were to do what seemed 
reasonable and appropriate in either resolving the appeal without a hearing or in 
preparing the case for hearing. In the course of this work, the TCO members of 
the Team were able to access the Panel for clarification or direction as necessary. 
Access through all stages of the pre-hearing process to the members of the 
hearing panel who will ultimately hear the appeal if it proceeds to a hearing, 
allowed the TCO members of the Team the confidence to explore more creative 
solutions with the parties, and to facilitate dispute resolutions, pre-hearing. 

Cases for the VRT stream were first identified - initially by the Case 
Management Team and subsequently by the TCO Intake department - on the 
basis of the Appeal Application form and on the Team's or the department's 
assessment of the issues on appeal. These cases were then reviewed by the TCO 
members of the VR Team. If the case was selected, the parties to the appeal 
were notified by the TCO member assigned to the case. The parties were 
informed that with their consent, it might be possible to expedite the resolution 
of the appeal, either without a hearing or with a hearing. 

A party to the appeal was not required to agree to any alternative approach 
during the pre-hearing phase of the appeal. Where there was no interest in 
exploring alternative, pre-hearing possibilities, the appeal was processed in the 
ordinary course and simply scheduled for a hearing before the VR Panel. As in 
any case at the Tribunal, parties were expected to respond to inquiries and 
communications in a timely fashion. Experience to date has been that most 
parties are very open to participating in alternative approaches in the 
pre-hearing processing of appeals. 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



For cases which went to a hearing, the Panel, licensed by its mandate to 
experiment with novel approaches to the hearing as well as the pre-hearing 
processes, developed a novel hearing process that it found particularly efficient 
and effective. This has been described in decisions of the Panel as a "fact finding 
approach". Under this approach, the initial questioning of the witnesses, 
including the worker, is conducted by the Panel itself (led by the Panel chair) 
rather than by the appellant or his or her representative. The parties or their 
representatives continue, of course, to be entitled to cross-question witnesses 
with opposing interests and may expand the focus of the questioning where 
they feel it necessary to do so. But with the Panel members leading the way in 
the questioning and thereby identifying at the outset the issues which, to their 
eye, the case record leaves in question, the efficient use of the hearing time is 
greatly enhanced. 

This "fact finding approach" requires, of course, that the Panel members 
come to the hearing with an intimate understanding of the case based on a 
thorough reading of the case record. And that requirement makes the members' 
openness to re-thinking their understanding of the case in response to the 
in-hearing testimony and submissions doubly important. An especially firm 
commitment on the part of Panel members to that openness is an essential 
feature of this model. 

In the course of the hearing, with the consent of the parties, the Panel 
would often put the "hearing" on hold while it initiated a general, free-flowing 
discussion of the nature of the appeal and the issues on appeal. In such 
discussions, it was common for the parties and the Panel to discover that the 
facts of the case or most of the facts were not in dispute and could be agreed 
upon. While there was less often consensus about the conclusions which should 
be drawn from those facts, even this sometimes developed. 

In the course of these in-hearing "discussions" - and in the course of the 
pre-hearing exploration of the possibility of pre-hearing dispositions - the Panel 
and the lawyer and legal worker members of the Team often employed 
alternative dispute resolution (ADR) techniques. These included assisting the 
parties in distinguishing between their real interests in the appeal and their 
mere positions - to use the terminology of principled negotiation now so 
common in the ADR world. 

These alternative hearing - and pre-hearing - techniques were only used 
with the consent of the parties. Where parties were not comfortable with any 
alternative techniques or approaches, a hearing was simply conducted in the 
traditional manner. 

The VR Panel found that these alternative approaches to the in-hearing 
process often seemed to call naturally for oral rulings, either with respect to the 
appeal as a whole, or concerning sub-issues. However, all cases which went to 
hearing were concluded with a written, reasoned decision, even if an oral ruling 
had been given at the hearing. 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



By mid-1996, it had become clear that the developing caseload demands 
made further and more radical experimentation with ADR methods essential. 
We began, therefore, to apply the experience gained in the Phase I restructuring 
to the development of a Phase II Restructuring Plan. The Phase II plan received 
Tribunal approval in late November 1996, and will be implemented in 1997. 

Phase II introduces a multi-stream processing concept. The streams are the 
"traditional hearing process stream", a "modified traditional hearing stream", 
an "alternative hearing stream" and an "early resolution stream". 

The alternative hearing stream constitutes a continuation of the Phase I 
Vocational Rehabilitation Team's experimental processes, expanded to include a 
broader range of types of appeals. The early review functions of Phase I's Case 
Management Team have devolved to the Tribunal Counsel Office, and the Case 
Management Team has been discontinued, with the members of that team now 
being assigned the responsibility of developing and operating the new, early 
resolution stream. The early resolution stream involves a particularly 
innovative, entirely new ADR structure devoted to finding the appropriate basis 
for resolving a case without having to invoke the hearing process at all. 

Details of the early resolution stream and other aspects of the Phase II plan 
may be seen in the Summary of the Chair's October 1996 Proposal and in the 
Tribunal's November 20, 1996, "Decision Document", both of which are 
available in the Tribunal Library. 



CASELOAD - FUTURE PROSPECTS 

Forecasting future incoming WCAT caseloads has always been an exercise 
fraught with uncertainty, and the difficulty is even more acute at the present 
time. A number of factors are at work. 

In the first place, the WCB's decision- making process - the source of 
WCAT's caseload - continues in flux. The Board's internal appeals procedures 
have been dramatically restructured and, as of the end of the reporting period, 
further major adjustments to those changed procedures were in process. Also, 
during the reporting period, the Board's procedures were especially focused on 
the resolution of the large backlogs that had accumulated at the Board. The 
sharp increase in the Tribunal's incoming caseload in 1996 had been thought to 
be attributable in large measure to the Board's success in reducing those 
backlogs and thus to be a particularly unreliable indication of what we could 
expect in the future. 

But, by the end of 1996, with its new appeals structures in full operation, 
the Board's Appeals Branch had found its production approximately balanced 
with its incoming caseload at the point where it was producing about 10,000 
decisions a year, and living with a remaining backlog of about 4,300 unassigned 
cases which, with the currently available adjudicative resources, could not be 
further reduced. 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



The changes in the Board's internal appeals system resulted in a significant 
reduction in the volume of the appeals ("objections" in the Board's new 
parlance) being brought to that system. Less than half as many objections 
entered the Board's appeals system in 1996 than in 1994, the last full year of the 
old system. However, the move by the Board to a single level of appeal has 
meant that all appeal decisions produced are final decisions, appealable to 
WCAT. So, while substantially fewer objections are entering the Board's appeals 
system, the new system is producing a greater number of decisions that are 
eligible for appeal to WCAT. At the end of the reporting period, the Board was 
projecting that in 1997 it would again be producing approximately 10,000 
appealable decisions. 

During 1996, when the changes at the Board were finally being fully felt at 
the Tribunal, the Tribunal's intake each month averaged 40% of the Appeals 
Branch's output in that month. (This compares with the traditional ratio of 49% 
under the Board's previous appeals structure.) Based on that experience, it can 
be expected that a WCB output at the 10,000-decisions-a-year level will now 
produce about 4,000 WCAT appeals. 

As this Report was being written (in January/ February 1997), the WCB was 
contemplating increasing the Appeals Branch's production resources in 1997 to 
the level required to both deal with the incoming caseload and reduce by the 
end of the year the remaining unassigned case backlog to a working level of 
about 1,000 to 1,500 cases. If that strategy were adopted, we might anticipate 
that by the end of 1997, the Tribunal's incoming rate would reach 5,300 cases a 
year. Furthermore, if the ratio of WCAT intake to WCB output were not to hold 
at the 40% level, the caseload would be further impacted. If it were to return, for 
example, to the traditional 49% level, the Tribunal's rate of intake could be 
expected by the end of 1997 to reach 6,500 cases per year. 

Please note that the reference here is to the rate of intake at the end of 1997. 
The effects of any extraordinary efforts by the Board to resolve its residual 
backlog would not likely be felt at the Tribunal until late in 1997 or early in 1998. 

Fortunately, there is reason to believe that these particular possibilities are 
of a short-term nature. The Board's initiative in reducing its remaining backlog 
presents for the Tribunal a one-year caseload anomaly (but with its potential 
impact on the Tribunal extending into 1998). Also, the Board is committed to 
the improvement of the quality of its first-level decision-making, and the 
redesign of the Board's appeals structure has as one of its important goals a 
greater level of acceptability of the appeals outcomes. To the extent that these 
goals are achieved, the number of Appeals Branch decisions as well as the 
proportion of those decisions that are appealed will be reduced. However, these 
possibilities are not likely to be reflected in WCAT's incoming caseload until 
well into 1998. The Board's new strategic commitment to further significant 
reductions in the number of workers' compensation claims that it receives in the 
first instance may also, of course, be the precursor of a further reduction in 
WCAT business in the long term. 



Workers 7 Compensation Appeals Tribunal Annual Report 1995 and 1996 



Bill 99 represents a number of different possibilities as far as the Appeals 
Tribunal's future caseload is concerned. Its proposed limitations on the Tribunal's 
jurisdiction and the removal of some categories of benefits may be expected to 
lead eventually to some reduction in the Tribunal's caseload. Experience with the 
1990 legislative changes tells us, however, that the impact of these changes will 
not be likely to affect the Tribunal's caseload for at least a year or two or more 
after the Bill's proclamation date. And, at least in the shorter term, it seems likely 
that the Bill will produce further increases in the caseload. 

For example, the new time limits on appeals and the proposed changes in 
benefit entitlements may be expected to lead to a short-term acceleration of the 
caseload as appellants seek to get in "under the wire". With a totally rewritten 
Act and a number of major substantive reforms, and with the new or rewritten 
Board policies that will have to follow, it is reasonable to expect a number of 
years in which the natural inclination to litigate novel interpretation issues will 
lead to increases in the level of litigation generally and probably to a 
correspondingly higher proportion of appeals. The introduction of limitation 
periods on claims and on appeals also introduces a brand new category of 
litigation, that is, litigation about the application of the limitation periods in the 
restriction of rights. 

Furthermore, some of the provisions in Bill 99 appear to raise quite broad 
factual issues. See, for example, the issue as to whether an employer has 
"co-operated in the early and safe return to work of the worker". Under the 
current Act, the question of co-operation usually only involves consideration of 
the worker's co-operation with respect to a specific Board initiative. It seems 
likely that the adjudication of a serious dispute concerning what in an 
open-ended set of circumstances adds up to co-operation by an employer - or 
perhaps more importantly what in such circumstances adds up to a failure to 
co-operate - will often require fairly lengthy proceedings. 

And then there is the advocacy resources factor. As has been noted in 
previous Annual Reports, the Tribunal's incoming caseload has traditionally been 
restricted by the funneling of appealable Board decisions through limited 
advocacy resources. In the past, much of the Board's output was effectively 
waylaid on its way to the Tribunal by the significant backlogs to be found in the 
Offices of the Worker Advisers, the legal aid clinics and the unions. Increasingly, 
however, this is becoming less of a factor. The recent explosion in the number of 
entrepreneurial "consultants" providing advocacy assistance to both workers and 
employers (see p. 12) means that limitations in the system's advocacy resources 
are fast disappearing. The funnel is rapidly becoming a chute. 

It will be seen, therefore, that at the present time there is for a variety of 
reasons a potential for caseload increases in the latter part of 1997 or in 1998 
that might take the Tribunal's annual intake to perhaps three times its 1995 
intake and double the already unprecedented levels of 1996. Those would be, of 
course, intake levels with which this organization as presently constituted 
would be unable to cope without significant budget increases, a further - and 
more major - restructuring, and time to recruit and train the significant new 
adjudication resources that those levels of caseload would require. 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



PLANNING FOR THE FUTURE 

As the Chair has indicated in previous reports, in his view there is a limit to 
the volume of cases that traditional final-level appeals structures can 
appropriately handle while remaining true to their mandate. He had previously 
offered the view that for WCAT that limit would be found at about the 3,000 
cases per year level. With the increased emphasis on novel ADR techniques 
contemplated by the Phase II Restructuring Plan, he is now of the view that this 
limit might be pushed to 4,000 cases a year. Beyond that, however, major 
rethinking, possibly involving the introduction at WCAT of a two-tier appeals 
structure, will be necessary. 

The obvious question is what, as of the end of the reporting period, the 
Tribunal is in fact proposing to do - in 1997 and 1998 - in light of these caseload 
potentials. 

In the Tribunal's 1992 and 1993 Annual Report, in contemplating the 
prospects for large caseload increases at that time, the Chair had occasion to 
consider planning responses to projected caseload increases that would be 
appropriate in an environment of radical fiscal restraint where the projections 
were inherently uncertain both as to the timing and the dimensions of the 
increases. He offered the following view (at page 4): 

It remains a fact, however, that the ultimate actual effect of these upstream 
events on the Tribunal's caseload cannot be calculated with certainty. And, 
in this era of radical fiscal restraint, the Chair believes that addressing 
caseload problems that have actually materialized is the only feasible 
strategy. This strategy implicitly contemplates periods of transition when 
the Tribunal's capacity to cope will, in point of fact, be outrun by the 
rapidly developing caseload increases. And, during these periods of 
adjusting production capacity to new realities, case delays may be 
experienced that would otherwise be unacceptable. However, it seems to 
the Chair that this is an unavoidable cost of prudent fiscal management in 
an era of restraint that cannot be avoided. 

This strategy of planning only for caseloads that have actually arrived 
continues, in the Chair's view, to be a valid and necessary approach at this time. 

The Tribunal's response to the developing caseload during 1995 and 1996 
was understandably somewhat hampered by the government's fundamental 
review of the workers' compensation system during this period - a review in 
which the continued need for the Appeals Tribunal was one of the questions in 
issue. At the beginning of 1995, it had seemed clear that the Tribunal was in the 
midst of another leap in the caseload. And, with the goal of bringing its 
production capacity up to a level of 3,000 cases per year, the Tribunal had 
secured approval from the previous government for a significant budget 
increase - a $2.3 million increase (about 19% over the 1994 budget). The 
principal feature of the plan underlying this budget was the support of the 
Phase I Restructuring Plan with the addition of three new, full-time hearing 
panels and associated support staff and facilities. 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



The process of developing agreement on the 1995 budget proposal meant 
that approval was not received until the end of February. By then, the trend in 
the caseload increase had inexplicably begun to flatten (the caseload expected in 
1995, in fact, finally arrived in 1996) and the Tribunal was also beginning to see 
the potential for gains in the Phase I Restructuring Plan. Accordingly, the 
addition of the new full-time panels was delayed and work was begun on the 
bolstering of the part-time vice-chair resource - a more flexible response in a 
world of uncertain intake projections. 

The result was that in June, when the government announced its intentions 
concerning the system review, the bulk of the 1995 budget increase had not 
been committed. And, of course, at that point it became impossible - as well as 
not sensible - to implement the planned expansion. Apart from anything else, 
the recruitment of new full-time vice-chairs and members was not feasible from 
a practical point of view while the Tribunal's continued existence remained an 
open question. 

Accordingly, from that point through to the end of 1996 we operated on a 
tacit understanding that Tribunal expenditures would be held at the status quo 
level pending completion of the review process. Vacancies that arose in the 
full-time vice-chair positions (two by the end of the reporting period) were not 
filled. However, in January 1996, the government accepted the Chair's 
recommendation concerning the appointment of five new part-time vice-chairs. 
And beginning in 1996, we increased the level of employment of the part-time 
vice-chair roster. However, the per diem fees and travel costs associated with 
that increase were covered by the transfer of money from other budget lines. 
The total expenditure in 1995 was ultimately held to approximately $12.3 
million and in 1996 to $11.7 million. 

With the tabling of Bill 99 in late November 1996, the uncertainty 
surrounding the Tribunal's future was put to rest, and plans for the future 
became an immediate priority. By the end of the reporting period (in fact on 
January 15, 1997), the Tribunal proposed to the Minister a detailed operational 
plan for 1997 and 1998 which reflected the Phase II Restructuring and was 
based on the assumption that the incoming caseload during this two-year 
period would average what had been in fact received in 1996, that is, 300 cases 
per month. The plan's goal was to deal with that increased intake while 
resolving the Tribunal's backlog by the end of 1998. This would require 
increasing the Tribunal's production rate to virtually double its 1996 production 
rate (to 390 per month) and accomplishing that by November 1997. 

The increase in expenditures proposed for 1997 was 11.4% over the 1996 
expenditures and 7.8% below the 1995 budget. The plan projected a decrease in 
budget in 1998 (in 1997 dollars) when the full savings associated with Bill 99's 
provisions concerning single-person adjudication at the Tribunal become 
available, and a further decrease in 1999 when the backlog-fighting component 
of the plan comes to an end. The projected 1999 budget, supporting a projected 
production of 300 dispositions a month, was 1% higher than the 1996 actual 
expenditures which had produced 200 dispositions a month. 



10 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



The operational plan for 1997 is ambitious. It relies heavily on the prospects, 
which the Chair believes to be inherent in the new four-stream process, of 
disposing of a much higher proportion of cases without a hearing, and on a 
number of uncertain operating assumptions, not the least of which is, of course, 
the assumption about the future level of incoming cases. In the Chair's opinion, 
however, it was a reasonable response to the caseload situation as it stood at the 
end of the reporting period, and one which, in any event, stretched the 
Tribunal's capacity for rational growth to the limit. Only time will tell whether 
it is realistic and/ or sufficient. 



REVIEW OF THE WORKERS' COMPENSATION SYSTEM 
DURING 1995- 1996 

A Royal Commission on Workers' Compensation chaired by Lynn Williams 
was appointed in November 1994. The Tribunal's briefing of the Royal 
Commission concerning the Tribunal's role in the system took place in January 
1995. When a new government was elected in June 1995, the Royal Commission 
was disbanded and the Honourable Cam Jackson was appointed Minister 
Without Portfolio Responsible for Workers' Compensation Reform. Minister 
Jackson's first step was to initiate a full review of the workers' compensation 
system. One of the questions on the review's agenda of issues was whether 
there continued to be a need for an external appeals tribunal. 

During the Minister's initial fact-gathering process in the fall of 1995, the 
Minister invited the Tribunal to brief him and his staff concerning the Tribunal 
and its role as the system's final-level appeal structure. The Chair and Alternate 
Chair met with the Minister and his staff in October. In December 1995, as a 
follow-up to that meeting, the Chair filed with the Minister a set of "Notes". 
The focus of the Notes was not WCAT per se but, rather, any final-level appeals 
structure in a workers' compensation system. The Notes were intended to speak 
to the nature of the system context within which any final-level appeal structure 
must fit and to address the principles and practical considerations which, in the 
Chair's view, were important to the design of any such structure. 

In January 1996, Minister Jackson published a Discussion Paper on New 
Directions for Workers' Compensation Reform. The Discussion Paper was intended 
to provide a focus for further discussion of what the Minister saw to be the 
fundamental problems facing the system and the possible solutions to those 
problems. The Discussion Paper explicitly asked the question (at page 27): "Is the 
continued existence of an external appeals tribunal justifiable?" If it is, should 
its jurisdiction be altered? 

The Minister had invited the Tribunal to comment on the Discussion Paper 
and in March 1996, the Chair filed a "Comment" with Minister Jackson and 
with the Minister of Labour. 

After a further period of consultation, Minister Jackson's final report was 
published in June 1996. 



11 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Following the release of Minister Jackson's final report, responsibility for 
the development of legislation fell to the Minister of Labour, and in November 
1996, Bill 99 received first reading. 

As it relates to the Appeals Tribunal, Bill 99 would, amongst other things: 
continue WCAT under a new name - Workplace Safety and Insurance Appeals 
Tribunal; require it to apply WCB policies identified by the WCB as applicable; 
direct it to release decisions within 120 days of the completion of a hearing; and 
establish that appeals would be decided by single adjudicators except in cases 
where the Tribunal Chair considered the circumstances "appropriate" for a 
three-person panel. The Act would continue provision for the appointment of 
members representative of workers and employers in numbers to be 
determined by the Lieutenant Governor in Council. It also would establish a 
six-month time limit on bringing appeals to the Tribunal. 

For readers interested in following the course of the discussion concerning 
the Tribunal and its appropriate role in the system during the Jackson review 
process, the Chair's Notes and the Chair's Comment, as well as Minister Jackson's 
Discussion Paper and his final report, are all available in the WCAT Library. 



TERMINATION OF THE CHAIR'S EX OFFICIO POSITION 
ON THE WCB BOARD OF DIRECTORS 

Since the Tribunal's inception in 1985, the Workers' Compensation Act had 
specified that the Chair of the Appeals Tribunal was a non-voting member of the 
WCB board of directors. See section 56(2) of the pre-1995 Act. An analysis of the 
role and its systemic implications as experienced and perceived by the current 
Chair may be found in WCAT's Second Report, 1986-1987, at pages 12 to 14. 

Effective November 1, 1995, amendments to the provisions of the Act 
dealing with the Board's governance structure eliminated the Chair's position as 
an ex officio member of the board of directors. See S.O. 1995, c. 5, s. 6(1). 



THE BURGEONING CONSULTANT INDUSTRY AND THE 
NEED FOR A CODE OF CONDUCT 

Representation of injured workers and employers by private enterprise 
consultants has grown dramatically. In 1996, 27% of all represented workers 
were represented by consultants. This compares to 6% in 1991 and 12% in 1994. 

The quality of representation provided by consultants is often very 
acceptable. However, as the number of individuals involved in the field grows, 
Tribunal hearing panels are increasingly encountering representatives who 
either contribute nothing of value to the process or who become a positive 
hindrance to a panel's hearing of the case. The more flagrant examples of this 
are increasingly being flagged by the panels through explicit criticism in their 
written decisions. 



12 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



The experience of bad representation is not confined to consultants (nor is it 
confined to those representing injured workers). But one redeeming feature of 
other categories of representatives is that they inevitably belong to 
organizations that have an interest in and some capacity for holding them 
accountable for reasonable competence and care in their work. Even 
sole-practitioner lawyers must answer at some level to the Law Society. 

Generally speaking, consultants do not operate under any such restraints. 
When panels are confronted with a representative who demonstrates ignorance 
of the law, has done no preparation concerning the evidence or facts, and who 
contributes nothing to the process but posturing, bombast and delay, when, in 
short, panel members realize that they are witnessing what amounts to a fraud 
on both the system and the client, and they are the only ones in a position to 
evaluate that conduct, what is the panel to do? Going public with criticism in 
the written decision may help to release the panel's frustration but it is only 
possible where the representative's client is successful in the appeal - criticizing 
a losing party's representative in the decision will not generally be appropriate 
- and such criticism can be safely ignored by a "winning" representative. 

It is also to be noted that because of the Tribunal panels' inquisitorial 
responsibility to decide cases on their real merits and justice, bad 
representatives will often be able to claim "wins" when they have done nothing 
but obstruct or delay the outcome. Such representatives can stay in the business 
and prosper on the basis of the panels doing their work for them. 

In these circumstances, and in the absence of other viable remedies, or, it 
seems, of any prospect of the regulation of so-called "paralegals", the Tribunal 
is now intent on the development of a Tribunal code of minimum conduct for 
representatives. We are also contemplating making reasonable conformance 
with that code a condition of continued participation in the Tribunal's 
processes, either in a particular proceeding or, where a pattern of 
non-conformance develops, generally. 



THE CROSS-APPOINTMENTS PILOT PROJECT 

The cross-appointments pilot project was a joint initiative on the part of the 
Ministry of Labour, the Office of Adjudication, the Pay Equity Hearings 
Tribunal and the Workers' Compensation Appeals Tribunal. 

The nature of the experience with the cross-appointments may be seen in 
the three Chairs' final report to the Minister of Labour, attached as Appendix B. 

The final report recommends the extension of the project for another term. 
But, at the end of the reporting period it is understood that the matter is on hold 
pending the restructuring or re-organization of the agencies in question. 



13 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



COLLECTIVE BARGAINING AT THE TRIBUNAL 

Tribunal staff are not members of the Ontario Public Service but are Crown 
employees employed directly by the Tribunal. Bargaining Unit staff are 
represented by OPSEU local 527, certified in October 1992. 

In 1996, the Tribunal and its Bargaining Unit became subject to their first 
collective bargaining agreement. This resulted from an Arbitrator's Award 
issued June 7, 1996. The award was issued pursuant to a first contract 
arbitration which was applied for by the employer in August 1995. The 
Tribunal's application for first contract arbitration had followed extensive but 
unsuccessful efforts at reaching a mutual final agreement. These efforts 
included meetings with a Conciliation Officer appointed by the Minister of 
Labour under section 16 of the Labour Relations Act in March and April 1995, and 
a meeting with a mediator appointed under section 17 on May 30, 1995. The 
nature of the issues referred to arbitration and the Arbitration Board's 
determination of those issues may be seen in the following paragraphs from the 
Board's award: 

The real issue between the parties is what to do with respect to the wages 
and classification system for the purposes of this first collective agreement. 
The Chair of the Tribunal under a Memorandum of Understanding with the 
Ministry of Labour hitherto has had the authority to set wages, etc. for the 
Tribunal's staff, and has exercised that discretion by allowing the staff to 
enjoy the same wage and classification grid as the main Civil Service group. 

The board awards continuation of the OPS rates and classification system 
as offered by the Tribunal. While we acknowledge the argument of the 
Union that this kind of direct linkage effectively removes from the Local 
the power to negotiate these matters on their own, that to us is once again 
an appropriate consequence of the unit having only too gladly hitched its 
star to the OPS wagon for essentially all other purposes. 



HIGHLIGHTS OF THE 1 995 - 1 996 CASE ISSUES 

This section of the Chair's report highlights the legal, factual and medical 
issues dealt with by Tribunal decisions during the reporting period. 
Unfortunately, it is never possible to do more than take note of a limited 
selection of issues that seem likely to be of special interest. The topics are 
presented in no particular order of importance. Some have been dealt with in 
previous annual reports, while others are new. 



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Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



During this reporting period, the Workers' Compensation Act 1 was 
amended by Bill 15 2 and Bill 165. 3 The Tribunal had only one occasion to 
consider these amendments. 4 However, in this reporting period, the Tribunal 
issued a number of cases dealing with the new compensation scheme 
introduced earlier by Bill 162. 5 For ease of reference, the Bill 162 cases have been 
grouped at the beginning of the case highlights. 

The version of the Workers' Compensation Act incorporating the changes 
introduced by Bill 162 will be called the "current Act". The earlier versions of 
the Workers' Compensation Act, which continue to apply to accidents occurring 
before 1985 and 1990, are referred to in the current Act as the "pre-1985 Act" 
and the "pre-1989 Act", 6 and will be referred to here in the same way. 



Re-employment 

Section 54 of the current Act creates a new obligation for specified 
employers to offer to re-employ injured workers. The Board has a discretion to 
impose a penalty on the employer and /or to award benefits to a worker for up 
to one year if the employer breaches its obligations. 

The three previous Annual Reports noted that two early Tribunal cases had 
held that the employer's obligation to offer to re-employ did not arise until the 
employer had received a valid notice of fitness from the Board. See Decision No. 
372/91 (1991), 19 W.C.A.T.R. 317, and Decision No. 605/91 (1991), 21 W.C.A.T.R. 
131. The Board provided general submissions on this interpretation and Annual 
Report 1992 and 1993 and Annual Report 1994 recorded a trend in more recent cases 
to interpret the current Act as creating a general obligation to re-employ. This 
now seems to be the accepted approach at the Tribunal. During this reporting 
period, no decisions issued which took the earlier view. 

An area of continuing difference between the Board and the Tribunal during 
this reporting period was the test an employer must meet to show that it has 
discharged its obligations under section 54. Board policy is that an employer must 

1 R.S.O. 1990, c. W.l 1 as amended. 

2 Workers ' Compensation and Occupational Health and Safety Amendment Act, J 995, 

S.O. 1995, c. 5: sections 6(1), (3), 8 and 9 deemed in force November 1, 1995; sections 1-5, 
10, 12-27 in force December 14, 1995; and sections 6(2), 7 and 1 1 proclaimed in force 
July 17, 1996. 

3 Workers ' Compensation and Occupational Health and Safety Amendment Act, 1994, 

S.O. 1994, c. 24: sections proclaimed in force between January 1, 1995, and April 10, 1995; 
s. 25(2) to come into force on proclamation. 

4 See Decision No. 213/93 (1995), 34 W.C.A.T.R. 84, where a panel considered the 
implications of the "purposes" clause introduced by Bill 165. 

5 Workers' Compensation Amendment Act, 1989, S.O. 1989, c. 47; in force, except sections 
1-27 and 29, July 26, 1989, sections 1-27 and 29 proclaimed in force January 2, 1990. 

6 Pursuant to section 144 of the current Act, the "pre-1985 Act" is defined as the Act as it read 
on March 31, 1985, and it applies to accidents occurring before April 1, 1985. The "pre-1989 
Act" means the Act as it read immediately before July 26, 1989, and it applies to accidents 
occurring on or after April 1, 1985, and before January 2, 1990. 



15 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



be able to demonstrate "just cause" for dismissal before it can terminate an 
injured worker without being seen to breach its re-employment obligation. 

Tribunal cases have held that the intent of section 54 is to place a worker in 
the position the worker would have been in if the workplace accident had not 
occurred. The test generally used by Tribunal panels is whether the employer 
displayed anti-injured-worker animus, that is, whether the reasons for 
termination related to the workplace injury or were an attempt to avoid section 
54. For example, where a truck driver was involved in a third preventable 
driving accident, which resulted in a compensable injury, and was terminated 
on his return to work, it was held in Decision No. 911/94 (1995), 37 W.C.A.T.R. 
138, that the employer had not violated section 54. The majority in that decision 
reasoned that the Act requires the employer to reinstate the worker to the 
position which he held on the date of injury, subject to the usual terms, 
conditions and policies. The worker was properly terminated under the 
employer's general policy of terminating drivers after three preventable driving 
accidents. The majority noted that the employer must produce convincing 
evidence that its decision neither was influenced by the compensable injury nor 
constituted an attempt to avoid its section 54 obligations. 

Similarly, section 54 was held not to have been breached where an injured 
worker who was employed under a term contract did not have his contract 
renewed because the employer had made a good faith decision to change its 
workforce. See Decision No. 944/95 (January 12, 1996). However, section 54 may 
be held to be breached even where the employer has valid economic reasons for 
laying off workers if the manner in which the lay-off is implemented 
discriminates against an injured worker on the grounds of the worker's 
compensable injury. See Decision No. 711/94 (1995), 34 W.C.A.T.R. 235. Similarly, 
an employer may be in breach where the work offered is not comparable to the 
pre-injury job. A job offer is not comparable where it does not incorporate 
arrangements regarding the worker's hours of work which had been specifically 
negotiated prior to the injury. See Decision No. 502/95 (September 13, 1995). 

A few re-employment cases have raised the possibility that section 54 
appeals may more readily lend themselves to settlement than other cases. 
Under section 18 of the current Act, it is not possible for a worker to agree with 
an employer to waive or forego any benefits under the Act. However, in two 
re-employment cases issued during the reporting period, Panels approved a 
settlement between the parties. In Decision No. 699/94 (1995), 35 W.C.A.T.R. 130, 
it was held that section 18 should not be applied in a mechanical way to prevent 
a well-informed settlement which met the parties' needs and systemic 
requirements, including the need that the Accident Fund not be negatively 
affected. In Decision No. 908/94 (1995), 35 W.C.A.T.R. 189, the parties agreed that 
the re-employment obligation had been breached but jointly submitted that the 
penalty should be waived. The Panel noted that section 54(13)(a) creates a 
discretionary penalty intended to further rehabilitation and that a waiver of a 
penalty does not constitute a waiver of benefits. Other factors considered were 
whether there was any systemic benefit or benefit to the parties in having 
timely closure, whether a penalty was reasonable in the circumstances and 
whether there was any abuse of the workers' compensation system. 



16 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



A variety of other issues under section 54 have arisen during this reporting 
period, including the standard of review to be applied when the Board makes a 
determination outside of the three-month time limit in section 54(12) (Decision 
No. 56/95 (1995), 35 W.C. A.T.R. 137), the extent to which discretionary benefits 
under section 54(13)(b) can be tailored to meet the circumstances of the case 
(Decision No. 851/93 (1995), 36 W.C.A.T.R. 70) and the interaction between 
temporary benefits under section 37 and discretionary benefits under section 
54(13)(b) (Decision No. 337/95 (1995), 36 W.C.A.T.R. 193). 



Penalties under the Re-employment Provisions 

Section 54(13) creates a discretionary penalty for breach of an employer's 
obligations under section 54. The maximum amount of the penalty is tied to the 
amount of the worker's net average earnings for the year preceding the injury; 
thus, the dollar amount of the penalty is variable and, for injured workers with 
high-paying jobs, can be quite significant. 

Board policy is to impose the maximum penalty as a general rule unless the 
employer cannot hire the worker for reasons beyond its control (for example, a 
market collapse) or the employer subsequently rehires the worker. Tribunal 
decisions have continued the trend noted in the two previous Annual Reports 
of taking a more flexible approach to penalty assessments. For example, the 
penalty was waived in Decision No. 502/95 where the Panel found that the 
employer had made a substantial effort to re-employ the worker and had not 
acted in bad faith or with anti-injured-worker animus. The employer had 
committed a technical breach as it did not fully understand the consequences of 
changing the terms of the injured worker's employment. 

Section 54 creates more than one obligation, and Decision No. 507/92 (1995), 
35 W.C.A.T.R. 17, considered the question of whether two separate penalties 
could be imposed where the employer had committed two breaches. The Panel 
found that a plain reading of section 54(13)(b) suggested that only one penalty 
should be imposed and, given the substantial nature of the maximum penalty, a 
single penalty would fulfil the Act's purposes of furthering re-employment and 
deterring violations. Since the amount of the penalty was discretionary, the 
adjudicator could consider the number of breaches in setting the amount. 



Future Economic Loss Awards and Supplements 

The current Act contains a new dual-award structure for compensating 
long-term disabilities. Section 43 provides for compensation for future economic 
loss (FEL) where the worker suffers injury resulting in temporary disability for 
12 continuous months or permanent impairment. Section 42 of the Act 
(discussed below) provides for compensation for non-economic loss (NEL). 

Section 43 is a complicated provision which not only introduces a new 
approach to compensation, but creates its own review process and time limits 
for when the original FEL decision (Dl) and FEL reviews (Rl and R2) should be 
undertaken. Section 43 is also closely tied to the new right to vocational 



17 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



rehabilitation in section 53, since the FEL award requires consideration of a 
number of factors including a worker's vocational rehabilitation prospects and 
what the worker is likely to earn in suitable and available employment. Section 
43(9) creates a FEL supplement which is available in certain circumstances 
where a worker is co-operating in a Board-authorized vocational or medical 
rehabilitation program. In light of the possibility of a FEL supplement, the 
Board has developed a system of FEL "sustainability awards". A worker who is 
back at work and suffering no wage loss may receive a nominal FEL award so 
that if the work arrangement ends, the Board can provide rehabilitation and a 
FEL supplement pursuant to section 43(9). 

Tribunal decisions often involve retroactive adjudication where a panel 
must go back in time and decide what the Board should have done in the first 
instance in order to determine past and current entitlement. This is a particular 
challenge in vocational rehabilitation appeals, since it is never possible to 
implement the vocational rehabilitation or the modified work at the time it 
should have been provided. A further complication in FEL cases, is that not 
only must the panel decide what vocational rehabilitation or modified job 
would have been appropriate and then project from there, but do so in light of 
the time lines provided in section 43. This is discussed in Decision No. 524/94 
(1995), 34 W.C.A.T.R. 164, which held that since it is not possible to effect 
rehabilitation retroactively, FEL benefits must be based on what the worker was 
likely to earn at the time without rehabilitation or a job offer, when these had 
not been available to the worker. 

Annual Report 1994 mentioned that Decision No. 776/931 (1994), 32 
W.C.A.T.R. 114, contained the most thorough discussion of FEL provisions, but 
that a final decision was deferred pending additional submissions from the 
Board, the parties and Tribunal counsel. Submissions were received during this 
reporting period and a final decision is expected in the upcoming reporting 
period. Meanwhile, a number of Tribunal decisions have considered aspects of 
the issues flagged by Decision No. 776/931. 

One difficult FEL issue is the effect of the time limits in section 43(10). The 
Act states that "[w]here possible" the Board shall make the original FEL 
determination: in the 12th consecutive month during which the worker is 
temporarily disabled; or within one year after notice of the accident if during 
that year the Board determines that the worker is permanently impaired; or 
within 18 months after notice of the accident, if the worker's medical condition 
precludes an earlier determination. Under section 43(12), the Board may extend 
the time limits for "a worker who is not receiving compensation under this Act 
and whose entitlement to compensation is in dispute". Section 43(13) provides 
that "[w]here possible" the Board shall review the initial FEL determination in 
the 24th month and the 60th month after the initial determination. 

Decision No. 627/95 (1995), 36 W.C.A.T.R. 268, interpreted section 43(10) as 
providing for a strict time-driven process which requires the Board to give a 
prompt best guess as to the likely future consequences of a workplace injury 
which is reviewed at the two-year and five-year points. "Where possible" refers 
only to exceptional circumstances or minor breaches of the time limits. Decisions 
No. 624/94 (1995), 34 W.C.A.T.R. 223, and 436/95 (1995), 36 W.C.A.T.R. 242, took a 



18 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



similar approach, finding that the FEL assessments should have been done at the 
18-month point. Decision No. 699/95 (January 22, 1996), indicated some flexibility 
in the time limits, and found that although the FEL assessment should have been 
made after one year or 18 months at the latest, there was no reason to adjust the 
effective date of the FEL award where the assessment was only somewhat out of 
time and the delay did not have a significant impact on the facts of the case. 
Decision No. 55/95 (1995), 34 W.C. A.T.R. 265, dealt with the case of an 
amputation, a permanent injury that did not result in 12 months of continuous 
temporary benefits, and found that the FEL assessment should have taken place 
when temporary benefits ceased. Decision No. 730/94 (April 26, 1995) held that 
section 43(12), which allows for an extension of time limits where there is a 
dispute, only applies where the dispute relates to initial entitlement to benefits. 

Tribunal cases have been consistent in holding that once the FEL date is 
determined, the worker's entitlement depends on the facts as they existed at the 
FEL date. The Act requires a prospective determination of the worker's likely 
future earnings loss, given the nature of the impairment and the worker's 
circumstances as they existed on Dl. New evidence which is relevant to the 
facts at the FEL date may be considered, but evidence of subsequent 
developments should be assessed at the appropriate review date. 

Tribunal decisions have also been consistent in holding that more than the 
worker's actual loss of earnings at Dl must be considered in making a FEL 
determination. Sections 43(7) and 63 of the Act specify a number of 
considerations, including the worker's personal vocational characteristics and 
prospects for successful medical and vocational rehabilitation. While the 
possibility of re-employment with the accident employer is an important factor 
where a job offer has been made, it is also necessary to consider whether the job 
was realistic and sustainable over a period of time. Decision No. 829/94 (1995), 33 
W.C. A.T.R. 229, applied the reasoning in Decision No. 776/931, that a "concocted 
job", which is not a real job which the worker could be expected to sustain, does 
not constitute suitable and available employment under section 43. 

This reporting period also saw two decisions dealing with section 43(8), 
which provides that a worker may elect to receive a FEL benefit equivalent to 
the old age security pension instead of the normal FEL amount if the worker is 
at least 55 years of age, has not returned to work and is unlikely to benefit from 
vocational rehabilitation. See Decisions No. 476/941 (1995), 33 W.C. A.T.R. 125, and 
1088/96 (1996), 40 W.C.A.T.R. 269. 



Non-economic Loss Awards 

As mentioned above, non-economic loss (NEL) awards are the second part 
of the compensation package which replaces the old pension system. In the 
past, workers were not entitled to compensation for non-economic damages 
such as loss of enjoyment of life. While the non-economic loss award is intended 
to compensate for more intangible losses, the statute provides for a very 
technical assessment process and the worker must have reached "maximum 
medical rehabilitation". Section 42(2) contains a formula for calculating the NEL 
award. The section also provides for medical assessments by doctors, a system 



19 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



for challenging these assessments and a separate NEL review process. Section 
42(5) provides that the Board shall make the NEL determination in accordance 
with the prescribed rating schedule and having regard to the NEL medical 
assessments. The America Medical Association Guides (AMA Guides) are 
prescribed by regulation as the rating schedule. 

During the previous reporting period, the Tribunal had only one occasion 
to consider section 42 in Decision No. 269/93 (1994), 30 W.C.A.T.R. 123. One of 
Decision No. 269/9 J s holdings - that the Board does not have any discretion to 
deviate from the applicable rating schedule where the impairment is specifically 
listed in the AMA Guides - was considered in Decision No. 122/96 (1996), 38 
W.C.A.T.R. 205. This decision found that under section 42, the Board continues 
to enjoy the right to exercise some reasonable judgment in applying the AMA 
Guides and in obtaining accurate assessments of the worker's condition when 
determining impairment. It is not always inappropriate to assess a degree of 
impairment not expressly provided for in the AMA Guides. Decision No. 122/96 
also held that a worker was not entitled to a multiple factor where he had a 
pre-1989 injury, governed by the old pension system, and an injury governed by 
the new compensation system. 

Several Tribunal decisions have emphasized that it is necessary to take into 
account the likely future consequences of a compensable injury in doing a NEL 
assessment. However, future significant deterioration is most appropriately 
considered by an application under section 42(21). See Decisions No. 584/96 
(August 1, 1996), and 566/96 (1996), 40 W.C.A.T.R. 193. 

A few Tribunal cases have noted the Board policy of deducting a pre-1989 
pension from a current permanent impairment rating in determining 
entitlement to a NEL award when both awards are for injuries to the same body 
part. However, none of these decisions had occasion to consider this policy. In 
Decision No. 883/95 (1996), 39 W.C.A.T.R. 161, the Panel found that where there 
was a reasonable basis to question the accuracy of the pre-1989 award, the Panel 
should look behind the mechanical application of the Board policy and decide 
whether there was any residual impairment due to the 1990 accident. Decision 
No. 764/961 (1996), 40 W.C.A.T.R. 212, noted that NEL assessments are very 
technical and it is difficult for a worker to predict what a NEL award will be 
and to make an informed decision to request a second NEL assessment. The 
Panel directed a new NEL assessment where the worker did not have a full 
opportunity to object due to lack of information. Decision No. 816/96 (1995), 40 
W.C.A.T.R. 226, found that section 42 requires a NEL assessment by an 
independent examiner and that it is important not to blur the distinction 
between the role of the medical assessor and the Board adjudicator. When the 
Board has a fundamental concern about a NEL assessment, its remedy is to 
require a second assessment under section 42(13). And see Decision No. 2/96 
(1996), 40 W.C.A.T.R. 104, on the use of the AMA Guides and rounding 
assessment ratings. 



20 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Transitional Supplements 

Although Bill 162 primarily dealt with accidents occurring after 1990, it also 
created a system of supplements for workers receiving pensions under the 
pre-1985 and pre-1989 Acts. This scheme is found in section 147 of the current 
Act. Since this section is in Part III of the Act, entitled "Transitional Provisions", 
section 147 supplements are often referred to as transitional supplements. 

The current Act placed a new statutory obligation on the Board to offer 
rehabilitation services to workers with post-1989 injuries and tied the level of 
FEL benefits to the worker's prospects for successful medical and vocational 
rehabilitation. Section 147 creates a somewhat similar scheme with respect to 
vocational rehabilitation for workers receiving pensions under the earlier Acts. 

Section 147(2) provides that the Board shall pay a supplement to a worker 
who, in the opinion of the Board, is likely to benefit from a vocational 
rehabilitation program which could help increase the worker's earning capacity 
so that it approximates the pre-injury earnings. Section 147(4) provides that the 
Board shall give a supplement to a worker who, in the Board's opinion, is not 
likely to benefit from a vocational rehabilitation program or whose earning 
capacity after such a program would not be increased to a level where it 
approximated the pre-injury earnings. The section 147(2) supplement is paid 
only while the worker is participating in a Board-approved program. A section 
147(4) supplement continues until the worker becomes eligible for old age 
security benefits, and the amount is limited to the amount of a full, monthly old 
age security pension. 

As recorded in the Annual Report 1994, Decision No. 689/91 (1994), 30 
W.C.A.T.R. 110, found that there was no statutory requirement to consider the 
reason for a worker's lack of vocational rehabilitation potential in determining 
entitlement to a section 147(4) supplement. Subsequently, the Board made 
general submissions on the interpretation of section 147(4) explaining the 
Board's policy that entitlement to a section 147(4)(a) supplement depended on 
the worker's wage loss being at least partially related to a compensable injury. 
These submissions came before the Panel in Decision No. 213/93 (1995), 34 
W.C.A.T.R. 84. That Panel noted that Decision No. 689/91 had not expressly 
commented on the Board policy that required a wage loss to be at least partially 
related to a compensable injury since it was dealing with a lack of vocational 
rehabilitation potential. Since, in their case, the compensable injury had made a 
significant contribution to the wage loss, it was not necessary for Decision No. 
213/93 to decide on the Board's submissions. And see Decisions No. 812/94 (1995), 

33 W.C.A.T.R. 212, and 438/951 (1996), 39 W.C.A.T.R. 152, which found that, 
even if the wage loss must be at least partially related to the compensable 
disability to qualify for a section 147(4) supplement, that requirement was met 
on the facts of those cases. 

Co-operation is often a central question in cases involving vocational 
rehabilitation. While section 147(2) does not specifically refer to co-operation, 
non-co-operation does raise the question of whether a worker is likely to benefit 
from a vocational rehabilitation program. Thus, Decision No. 740/92 (1995), 

34 W.C.A.T.R. 67, denied a supplement under section 147(2) where a worker had 
previously not co-operated in a suitable training program due to lack of attendance. 



21 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Other interesting issues involving section 147 supplements included: 
whether payment of such supplements is excepted from the Ontario Human 
Rights Code because the payments are periodic (Decision No. 468/94 (1995), 35 
W.C.A.T.R. 101); the relationship between CPP payments and section 147 
supplements (Decision No. 220/95 (1995), 34 W.C.A.T.R. 297); the Board's policy 
on providing cost relief to Schedule 1 employers for workers under 55 who 
receive transitional supplements (Decision No. 438/95 (1996), 39 W.C.A.T.R. 152); 
calculation of post-accident earnings under section 147(9) (Decision No. 284/95 
(1995), 36 W.C.A.T.R. 181); the Board's policy that a vocational rehabilitation 
program must be likely to re-establish the worker's "approximate" pre-injury 
earnings profile (Decision No. 822/951 (1996), 37 W.C.A.T.R. 267); and the need to 
consider whether a worker is entitled to a section 147(4) supplement where a 
vocational rehabilitation program did not increase his earning capacity to the 
necessary extent (Decision No. 127/96 (1996), 38 W.C.A.T.R. 215). 



Occupational Stress 

Earlier Annual Reports recorded that the Board was in the process of 
developing a policy on chronic occupational stress, in addition to its policy on 
stress claims resulting from traumatic and life-threatening events. Bill 99, which 
is currently being considered by the Legislature, would exclude compensation 
for chronic stress. However, since the current Act is still in force and no Board 
policy on chronic stress has been adopted during this reporting period, the 
Tribunal has continued to adjudicate stress appeals under the Act on a 
case-by-case basis. 

The two previous Annual Reports noted the development of a new test to 
address the problem of how to assess workplace stressors and workers' 
subjective reactions. The Tribunal's chronic stress decisions generally apply a 
two-part test: (1) whether a worker of average mental stability would perceive 
the workplace circumstances as mentally stressful; and, (2) if so, whether that 
average worker would be at risk of suffering a disabling mental reaction. This is 
sometimes referred to as the "reasonable person" or "average worker" test. 

Decision No. 826/94 (1995), 36 W.C.A.T.R. 102, considered how this test, which 
has been applied only to chronic stress, could be reconciled with the thin skull 
doctrine. The majority concluded that the average worker test is justifiable to the 
extent that it is a reasonable way of testing the sufficiency of the causal 
relationship between the workplace event and the chronic stress. The key 
question is not whether the employment was a significant contributing factor, but 
the prior question of whether the injuring process arose out of and in the course 
of employment. Chronic stress cases were found to be distinguishable from cases 
involving a compensable physical injury which leads to a psychological injury, 
since it is less difficult to determine if a physical injury arose out of and in the 
course of employment. The majority concluded that the "average worker" test 
should not be extended to physical injuries which lead to mental problems. 

Two interesting cases considered the effect of technological changes in the 
workplace. Decision No. 511/95 (1996), 37 W.C.A.T.R. 210, denied a claim for 
fibromyalgia caused by stress due to the automation of equipment. The 



22 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



employer was a small company which had automated to remain competitive. 
The worker did not use the equipment properly despite many efforts by the 
employer to encourage him, including more supervision and education. The 
stress disability was found not to relate to the pressures of employment where 
the employer had instituted reasonable and legitimate requirements and had 
tried to help the worker adjust. On the other hand, in Decision No. 86/96 (1996), 
38 W.C.A.T.R. 182, a new computerized inventory system was implemented. 
The worker was given significant responsibility for the computer without any 
real training and his workload was increased so that he was unable to keep up. 
While the worker had a "thin skull", the workplace stress was found to be a 
significant cause of the worker's psychological disability. 

Tribunal cases have continued to distinguish between cases of disability and 
situations where the worker's reaction to the workplace stress was emotional, but 
did not amount to true disability. See Decision No. 50/94 (June 21, 1995). 



Occupational Disease 

Occupational disease cases involve workplace exposure to harmful 
processes or substances. The Tribunal's interpretation of the law in this area 
remains the same. Disabilities are compensable if they fall within statutory 
provisions governing either "occupational disease" or "disablement". 

Decision No. 935/90 (1995), 34 W.C.A.T.R. 1, is the latest in a series of 
Tribunal decisions on whether manual work, which does not involve vibrating 
tools, is likely to make a significant contribution to Dupuytren's contracture. 
Decision No. 935/90 reviewed the cases to date as well as extensive medical and 
epidemiological evidence and concluded that medical science still does not 
know whether manual labour causes or aggravates Duypuytren's disease. 
While the epidemiological evidence was inconclusive at best, there was clear 
evidence before the Panel supporting the theory of a causal connection between 
a number of diseases and genetic factors and the development of Dupuytren's 
contracture. The Panel found that the mere possibility that a condition is in 
some way related to work is not sufficient to attract benefits. 

Another case involving very complicated medical evidence was Decision No. 
249/96 (1996), 40 W.C.A.T.R. 110, the first Tribunal case to consider the effects of 
aluminum exposure. While much of the public discussion about aluminum 
involves a possible connection to Alzheimer's disease, Decision No. 249/96 did 
not deal with Alzheimer's disease, but with a worker who was unusually 
susceptible to aluminum and had a neurotoxic disability. As an electrician 
between 1966 and 1990, the worker had had extensive exposure to aluminum, 
including the inhalation of aluminum powder and working with aluminum 
materials and spray paints. The worker did not use a mask or gloves and also 
ingested aluminum dust by licking his fingers and placing parts in his mouth. 
Expert medical evidence at the hearing indicated that there were a number of 
indicia that the worker suffered from aluminum poisoning including: 
significantly higher concentrations of aluminum in his blood; symptoms of 
neurotoxicity; the fact that the disability was limited to the part of the brain 
typically affected by aluminum; the lack of evidence of any other insult to the 



23 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



brain; the fact that the worker's cognitive functions ceased to deteriorate after 
treatment reduced the amount of aluminum in his blood; the absence of any 
other unusual exposure to aluminum outside of the workplace; and the fact that 
the worker was an individual who more readily absorbed aluminum than most 
people. Thus, the medical expert evidence that the worker's neurotoxic 
disability was likely caused by aluminum exposure appeared strong, while the 
evidence of any other possible causal factor was virtually non-existent. On the 
balance of probabilities, the Panel found that the worker's neurotoxic disability 
was likely caused by his exposure to aluminum at work. 

Hearing loss is treated as an occupational disease under the Act, and a 
number of cases during this reporting period have considered the Board's 
policy on apportioning between compensable and non-compensable sources of 
hearing loss. While the "thin skull" principle applies in hearing loss cases, a 
legally-recognized exception to this principle exists where there is a measurable 
pre-existing disabling condition. In hearing loss cases, it is often possible to 
identify pre-existing hearing loss. However, there has been some divergence as 
to whether it is appropriate to base initial entitlement only on the compensable 
degree of disability or whether initial entitlement should be decided based on 
the total hearing loss, and the quantum of the pension then apportioned to 
reflect the degree of impairment relating to workplace noise exposure. Decision 
No. 66/95 (1996), 38 W.C.A.T.R. 95, and the majority in Decision No. 613/93 (1996), 
37 W.C.A.T.R. 77, both held that the latter approach was correct that 
apportionment should take place at the point of calculating the pension, and not 
in determining initial entitlement. 

Other interesting occupational disease appeals have considered: isocyanate 
exposure and asthma (Decision No. 198/93 (March 3, 1995)); asbestos exposure at 
a smelter and colon cancer (Decision No. 151/92 (1995), 34 W.C.A.T.R. 35); 
asbestos exposure as a rigger/ boiler-maker and lung cancer (Decision No. 893/90 
(October 8, 1996)); and pension rating for white finger disease (Decision No. 
640/94 (1996), 39 W.C.A.T.R. 78). Decision No. 893/90 contains an interesting 
analysis of the association between asbestos-related cancer and asbestosis, given 
that slight and even moderate asbestosis may go undetected. 



Chronic Pain and Fibromyalgia 

Earlier Annual Reports have dealt with the issues of chronic pain and 
fibromyalgia in some detail. While the Board and the Tribunal initially took 
different views of whether chronic pain was within the scope of the Act, the 
1990 WCB board of directors' section 93 review 7 showed substantial agreement 
between the two institutions. For more detail, see Appendix C to the Third 
Report, Annual Report 1991, Annual Report 1992 and 1993 and Annual Report 1994. 
While Bill 99 proposes to change the compensation scheme for chronic pain 
significantly, appeals coming to the Tribunal during this reporting period 
continued to be governed by the current Act or the earlier legislation. 



Review of Decisions No. 915 and 91 5 A (1990), 15 W.C.A.T.R. 247. Note: A section 93 
review was previously known as a section 86n review. 



24 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Under the current Act, workers with chronic pain may be entitled to FEL 
and NEL benefits. As discussed earlier, a worker's vocational rehabilitation 
potential is of increased importance under the current Act, in particular with 
respect to FEL benefits. Decision No. 722/95 (1996), 37 W.C.A.T.R. 249, comments 
that vocational rehabilitation is notoriously difficult where the primary 
disability is pain. The worker may require additional support to cope with and 
understand the pain symptoms. Where a vocational rehabilitation plan did not 
address the worker's major disability, which was chronic pain, it was found that 
the worker was not likely to learn anything. A full FEL award was made. And 
see Decision No. 597/92 (1995), 33 W.C.A.T.R. 1, which discusses pension rating 
for chronic pain under the earlier legislation. 

While normally a lack of motivation is not grounds to deny compensation for 
chronic pain, Decision No. 915 (1987), 7 W.C.A.T.R. 1, and other Tribunal cases left 
open the possibility that a worker's undermotivation could be so serious as to 
constitute an intervening cause and effectively render the contribution of the 
workplace accident insignificant. Decisions No. 499/94 (1995), 34 W.C.A.T.R. 155, 
and 789/96 (December 19, 1996), are examples of this type of undermotivation. 



Experience Rating of Employers (NEER) 

NEER is an experience rating program which is intended to shift some of 
the burden of a rate group's costs to employers with above average claim costs. 
An employer's actual costs in a year are compared with the assessment rate for 
the rate group and are considered in the calculation of the employer's 
assessment for three years. This enables the Board to estimate the cost of the 
claim in the first year and fine-tune it over the next two years. 

While Bill 99 contemplates changes to the Tribunal's jurisdiction to review 
Board policy and assessment practices, decisions released during this reporting 
period are governed by the current Act and have followed previous Tribunal 
decisions in holding that the Tribunal has jurisdiction to review decisions which 
the Board may consider administrative in nature (such as NEER calculations) 
and to hear all aspects of an employer's assessment appeal. The Tribunal has 
also held that the systemic effect on the Board's administration must be 
considered in such appeals. 

Decision No. 591/94 (1995), 33 W.C.A.T.R. 157, found that the appropriate 
standard of review to apply to the Board's NEER policy is a "reasonableness" 
test but that significant weight should be given to the real merits and justice of a 
case. While the three-year NEER window is desirable for convenience and 
finality, NEER policy should recognize exceptional circumstances. The NEER 
policy should not be applied so as to thwart the purposes of the Second Injury 
and Enhancement Fund (SIEF), which introduces an element of equity into 
employer assessments and encourages hiring of workers with pre-existing 
disabilities. In deciding whether to open the three-year NEER window, the 
591/94 Panel identified four considerations: (1) whether the employer showed 
due diligence in pursuing SIEF relief; (2) the nature of the worker's disability; 
(3) systemic delays; and (4) the elapsed time between the NEER cut-off date and 
the SIEF decision. See also Decisions No. 426/95 (1995), 35 W.C.A.T.R. 230, 86/9512 



25 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



(1995), 36 W.C.A.T.R. 150, 996/94 (October 3, 1995), 1055/94 (January 9, 1996), 
954/95 (1996), 39 W.C.A.T.R. 208, and 716/96 (December 31, 1996). 

Decision No. 504/92 (1995), 36 W.C.A.T.R. 37, considered the relationship 
between Board policy on NEER and section 91(7) penalty assessments. Before 

1988, it was Board policy that an employer charged with both a section 91(7) 
penalty and a NEER penalty would be relieved of the lesser penalty. Effective in 

1989, Board policy was changed to limit section 91(7) penalties to firms not 
participating in NEER. It was argued that the policy change should be applied 
retroactively. The Panel considered prior Tribunal jurisprudence and found that 
since the policy change was a discretionary one, and not a legal overruling, the 
Board could determine the appropriate start date for the new policy. The appeal 
was dismissed as there was no evidence that the policy had been applied in a 
manner that was arbitrary or discriminatory against the employer. 



Other Employer Issues 

It is well established in Tribunal cases that interest is generally payable on 
overdue payments to workers. The Board has also adopted a policy to this 
effect. This reporting period saw a number of appeals which raised the question 
of whether interest could be paid on overdue payments to employers. Decision 
No. 323/93 (August 7, 1996), records that while the Board has recognized that in 
certain circumstances it should pay interest to employers, because of technical 
difficulties related to its computer system, it has not yet implemented an 
interest policy for employers. Pending the development of Board policy, 
Decision No. 526/93 (1996), 39 W.C.A.T.R. 14, and Decision No. 323/93 found that 
there was good reason on the facts of those cases to pay interest based on the 
merits and justice of the employers' appeals. 

Decisions No. 864/931(1995), 35 W.C.A.T.R. 59, and 605/95(1995), 37 
W.C.A.T.R. 226, considered appeals from Workwell audits. In Decision 
No. 864/931, the Panel expressed concern about the extent of subjective 
evaluation in a Workwell audit and felt the process might be more fair if more 
objective criteria were used. In Decision No. 605/95, the Panel noted that there is 
a discretion to relieve an employer of a penalty under Board policy if the 
employer's default is excusable due to circumstances beyond the employer's 
control. In this case, the employer was in financial crisis due to a recession and 
was not in a position to allocate resources to correct defects found in the first 
audit. These defects were primarily due to a lack of documentation, and the 
employer began documentation when its finances improved in 1992. In the 
circumstances, the Panel relieved against a surcharge. 



Miscellaneous 

An issue which has been noted in earlier Annual Reports is the question of 
whether the Tribunal has the jurisdiction to consider challenges under the 
Canadian Charter of Rights and Freedoms. Decision No. 534/90 (1992), 23 W.C.A.T.R. 
121, discussed in Annual Report 1992 and 1993, found that the Panel did not have 
jurisdiction to consider a Charter question under section 52(1) of the 



26 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Constitution since it did not have the jurisdiction to fashion a suitable remedy 
in the case. However, the Supreme Court of Canada decision in Schachter v. 
Canada (1992), 93 D.L.R. (4th) 1, which issued at about the same time as Decision 
No. 534/90 but was not brought to that Panel's attention, indicated that remedial 
powers under section 52(1) included the ability to "read in" a provision to a 
piece of legislation. Decision No. 534/90R (1995), 37 W.C.A.T.R. 1, decided to 
reopen the earlier decision in light of this new remedial power. The Panel noted 
that "reading in" is an unusual power, which must be applied with great care. 
However, it was prepared to assume jurisdiction at this point although it might 
need to revisit its jurisdiction if at a later point it did not appear that there was 
any appropriate remedy. 

Decision No. 142/94 (April 4, 1995), found that the Tribunal was not a court 
of competent jurisdiction under section 24 of the Charter but that, even if it 
were, the Tribunal did not have the jurisdiction to grant exemplary damages or 
a declaration as a Charter remedy. A party's right to sue for a constitutional tort 
was not taken away by the Workers' Compensation Act. Decision No. 34/92 (1996), 
40 W.C.A.T.R. 1, considered the argument that recovery of an overpayment by 
the Board amounted to "cruel and unusual treatment or punishment" in 
violation of section 12 of the Charter where the worker was previously 
convicted by a criminal court of fraud, given a suspended sentence and ordered 
to perform community service. Assuming that repayment might be argued to 
constitute "treatment", the Panel found repayment was not so excessive as to 
offend standards of decency. There was no Charter violation. 

An area of continuing development in Tribunal case law is the calculation 
of a worker's earnings basis. For example, where a worker has seasonal or 
casual employment, what period of time should be used as the basis for the 
calculation and should any unemployment insurance benefits or earnings with 
other employers be included? See Decisions No. 1080/94 (1995), 37 W.C.A.T.R. 
173, 721/95 (1996), 40 W.C.A.T.R. 91, and 1035/96 (November 29, 1996). How 
should deductions for income tax be made (Decision No. 28/95 (1996), 38 
W.C.A.T.R. 81), and what credit should be given for room and board (Decision 
No. 199/96 (November 12, 1996))? 

Other significant legal and medical issues to come before the Tribunal 
included: whether the Act removed the right to sue for punitive damages 
(Decision No. 676/94 (1995), 33 W.C.A.T.R. 185); whether the Act applies to First 
Nations and, if so, how an Indian band should be treated (Decision No. 79/94 
(1995), 34 W.C.A.T.R. 135); whether the Mental Health Act applies to release of 
psychiatric records contained in Board files (Decision No. 745/91R3 (1995), 36 
W.C.A.T.R. 9); the impact of amendments to the Insurance Act and the Workers' 
Compensation Act on an employer's subrogated right of action and the Tribunal's 
jurisdiction to consider applications by an insurer from whom statutory 
accident benefits are claimed (Decision No. 145/95 (1995), 35 W.C.A.T.R. 195, and 
Decision No. 830/95 (1995), 37 W.C.A.T.R. 278); and when it is appropriate to 
recover an overpayment to a worker (Decisions No. 828/94 (1995), 35 W.C.A.T.R. 
163, 879/92 (1996), 37 W.C.A.T.R. 56, and 34/92 (1996), 40 W.C.A.T.R. 1). 

A number of decisions issued on matters of particular concern to workers' 
compensation proceedings, either practice and procedure at the Tribunal or the 



27 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



relationship between the Tribunal and the Board. Decision No. 963/961 (1996), 40 
W.C.A.T.R. 255, contains a good discussion of tripartite decision-making at the 
Tribunal. A hearing before a new panel was ordered where there was a 
reasonable apprehension that a final conclusion might have been reached before 
the Panel members had had an opportunity to caucus and discuss the case 
together. See also: Decision No. 888/94 (1995), 35 W.C.A.T.R. 175, which found 
that the Tribunal has no jurisdiction over the internal processes at the Board 
except where this is somehow necessary to discharge an appellate function; 
Decision No. 466/951 (1995), 35 W.C.A.T.R. 238, which considered the limits on 
the Tribunal's investigative powers; Decision No. 776/9312 (1995), 35 W.C.A.T.R. 
54, on the criteria for allowing intervenors in Tribunal proceedings; Decision No. 
762/91R3 (1996), 38 W.C.A.T.R. 1, on the test to be applied on a second 
reconsideration request; Decision No. 28/95 (1996), 38 W.C.A.T.R. 81, on the role 
of Tribunal counsel in making submissions on the law; and Decision No. 935/951 
(1996), 39 W.C.A.T.R. 177, on the circumstances in which the withdrawal of an 
appeal should be refused. 



JUDICIAL REVIEW APPLICATIONS 

In 1995 and 1996, applications for judicial review were heard by the 
Divisional Court in respect of the following seven cases: 

Decision No. 775/92, heard February 15, 1995 

Decision No. 882/92, heard June 23, 1995 

Decisions No. 662/921 and 662/92, heard November 17, 1995 

Decisions No. 468/92 and 468/92R, heard November 30, 1995 

Decision No. 82/93, heard December 11, 1995 

Decision No. 716/91, heard December 14, 1995 

Decisions No. 351/93 and 351/93R, heard May 8, 1996. 

All seven applications were dismissed. 

Motions for leave to appeal decisions of the Divisional Court upholding 
Tribunal decisions were brought to the Court of Appeal in the following two 
cases: Decisions No. 468/92 and 468/ 92R, and Decision No. 82/93. These applications 
were dismissed on February 12, 1996, and June 12, 1996, respectively. 

A motion for leave to appeal to the Court of Appeal respecting the decision 
of the Divisional Court upholding the Tribunal's Decision No. 716/91 was heard 
on April 1, 1996, and leave was granted. As of the end of the reporting period, 
this appeal was still pending. 

Applications for judicial review of the following six cases remained 
outstanding and unheard as of the end of 1996: 

Decision No. 432/94 
Decision No. 850/94 
Decision No. 24/96 
Decision No. 81/95 
Decision No. 1120/96 
Decision No. 199/94. 



28 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



OTHER COURT MATTERS 

On December 2, 1992, an injunction was granted by the Ontario Court 
(General Division) restraining an applicant from proceeding with a section 17 
application before the Tribunal until the trial or other final disposition of the 
matter. The Tribunal had been accorded status as a friend of the Court and 
opposed the granting of the injunction on jurisdictional grounds. On February 
4, 1993, the section 17 applicant's application for leave to appeal from this 
decision was granted by the Divisional Court, and on June 9, 1993, the 
Divisional Court set aside the injunction. On January 24, 1994, the respondent's 
application for leave to appeal to the Court of Appeal was granted. As of the 
end of the reporting period, this appeal was still pending. 



OMBUDSMAN COMPLAINTS 

Since its inception in 1985, the Tribunal has received, on average, 
notification of approximately 60 Ombudsman complaints a year. The Tribunal's 
Case Tracking System indicates notification of 50 complaints in 1995 and 48 
complaints in 1996. It should be noted that an Ombudsman complaint can relate 
to a Tribunal decision made at any time, so that complaints received in 1996 
would not necessarily deal with 1996, or even 1995, cases. 

The Ombudsman's office thoroughly investigates complaints and also 
considers the reasonableness of the Tribunal's analysis. The proportion of 
complaints in which the Ombudsman has found no cause to question the 
Tribunal's decision has always been very high. In 1990, the Tribunal began to 
track the outcomes of complaints in more detail. While most Ombudsman 
investigations result in a letter from the Ombudsman advising that there is no 
reason to question the Tribunal's decision, since 1990 26 have resulted in the 
Tribunal undertaking a reconsideration process. Twenty-three of these 
reconsiderations have been completed. Six were completed during this 
reporting period with the following results: two were denied, one was 
withdrawn, one was allowed, one was allowed in part, and one clarified an 
earlier decision. 

One of the Ombudsman's investigations disclosed a need for more 
documentation on the Tribunal's policies for reimbursing workers and their 
witnesses for hearing expenses. While the Tribunal generally follows the 
Board's practice in this area, it appeared that we were not communicating our 
policies in that regard very well. Accordingly, during this reporting period, the 
Hearing Expense Claim form was revised and a new Practice Direction dealing 
with fees and expenses was prepared. The Practice Direction was formally 
approved shortly after the reporting period ended (on February 5, 1997) and a 
copy is to be found in Appendix C. 



29 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



The Tribunal Report 



VICE-CHAIRS, MEMBERS AND STAFF 

Lists of the Vice-Chairs and Members, senior staff and Medical Counsellors 
who were active during the reporting period, as well as a record of the roster 
changes and resumes for newly appointed Vice-Chairs and Members, can be 
found in Appendix D. 



OFFICE OF COUNSEL TO THE CHAIR 

Although the Office of Counsel to the Chair (OCC) has been in existence 
since the creation of the Tribunal, its activities have generally been reported in 
the context of the Report of the Tribunal Chair on the draft review process, 
rather than as a Tribunal department. 

The draft review process provided by the Counsel to the Chair and the 
Associate Counsel to the Chair is one of the major institutional means for 
promoting the quality and consistency of Tribunal decisions. The Tribunal has 
always recognized the need to be fully respectful of the hearing panels' 
independence and autonomy, and a draft is only reviewed at the drafter's 
request. Following the comments of the Supreme Court of Canada in 1992 on 
another tribunal's draft review process, 1 the Tribunal's process was reviewed 
again and formal Guidelines for Review of Draft Decisions were adopted. These 
continue to be followed by OCC lawyers. The Guidelines describe the process in 
some detail and appear as Appendix A to the Annual Report 1992 and 1993. They 
have also recently been reproduced in Administrative Agency Practice, 2 a practice 
guide for administrative agencies and practitioners edited by James Sprague. 

Other OCC responsibilities include training, current awareness and research 
services, administering the reconsideration process, responding to Freedom of 
Information and Protection of Privacy Act issues and complaints, and assisting 
with Ombudsman matters. 



TRIBUNAL COUNSEL OFFICE 

The Tribunal Counsel Office (TCO) consists of five groups, each reporting 
to the General Counsel. This structure reflects a reduction in the number of 
groups from prior reporting periods, from six to five, because the former Case 
Description group has been amalgamated with Intake. 



1 Tremblay v. Quebec (Commission des Affaires Sociales) (1992), 90 D.L.R. (4th) 609. 

2 (1997), 2 A.A.P. 137. 



31 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Intake 

The Intake department handles all incoming appeal applications and the 
public's questions about appeals and about the appeal process. 

The Intake department is also primarily responsible for the Tribunal's 
"special section" cases. The special section cases include access to worker file 
cases (under section 71), employer requests for medical examination (under 
section 23) and cases on the right to maintain civil actions for damages (under 
section 17). 

The Intake group now also includes the case analysts who are responsible 
for the production of the Case Record. This change reflects the amalgamation 
with Intake of the former case description group, and a change in their work, 
which resulted from the Phase II Restructuring Plan. In the past, the case 
description writers produced a brief written description of the history and 
issues for every file, and undertook an extensive sorting of the file material. 
Both these activities are no longer carried out. To reflect this change, the title of 
the document formerly called the "Case Description" was changed to "Case 
Record". The job title of the former case description writers was changed to 
"case analysts". The case analysts continue to receive technical advice from a 
senior Tribunal lawyer. 

With the introduction of the case management functions, the case analyst 
group has also become more actively involved in reviewing appeals to ascertain 
if they are ready to proceed to hearing. The case analysts identify issue agenda 
problems including jurisdictional problems (arising largely due to the fact that 
related issues may not yet be resolved at the Board level) and may assist parties 
to understand the law and policy relevant to their appeal. They make 
recommendations about whether an appeal is suitable for a written hearing and 
about whether it will require a full-day or half-day hearing. 



Pre-hearing Legal Workers 

When the case record is complete, the case is scheduled, and is transferred 
either to a pre-hearing legal worker or to a lawyer, for carriage through the 
hearing process. Over 95% of cases are handled by legal workers. These legal 
workers deal with matters that arise pre-hearing, and provide assistance to the 
parties if there are questions respecting the preparation of the cases. 

The Pre-hearing Legal Workers who work on the "mainstream" cases are 
headed by the manager of the Pre-hearing Group. In 1996, one senior legal 
worker was also assigned to work directly with the VRT Panel. 



Lawyers 

In 1995 and 1996, there were five lawyers in TCO, as well as one articling 
student. 



32 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Lawyers continue to handle a small number of the most complex cases, 
involving novel legal issues or issues which have been identified as involving a 
significant Tribunal interest. The work of TCO lawyers has also increasingly 
involved either work for the new specialized teams or the provision of technical 
advice to the pre-hearing group or case analysts. One TCO lawyer was assigned 
on a full-time basis to the Case Management team and, after this role was 
completed, to the new Early Resolution Team. Another TCO lawyer was 
assigned to the VRT team. Still another lawyer has taken responsibility for 
advising on all NEL, FEL, reinstatement and employer assessment and 
classification issues, and supervision of the pre-hearing legal workers on those 
issues, and another has undertaken a similar role on files involving stress, 
chronic pain, occupational disease, hearing loss and psychiatric issues. As stated 
above, the fifth TCO lawyer advises the case analyst group. 

TCO lawyers also handle applications for judicial review and other 
court-related matters. 



Post-hearing Legal Workers 

When a panel identifies that additional information is required after a 
hearing, a request is made to the post-hearing legal workers, who co-ordinate 
this continuing investigation. 

The post-hearing legal workers are headed by the Senior Legal Worker, 
Post-hearing. 



Medical Liaison Office 

The Medical Liaison Office (MLO) co-ordinates and oversees all of the 
Tribunal's interactions with the medical community and facilitates the 
Tribunal's use and understanding of medical evidence. 

The Tribunal has an interest in ensuring that hearing panels have sufficient 
and appropriate medical evidence on which to base decisions. All Case Records 
are reviewed by MLO for the purpose of identifying those cases in which the 
medical issues may be problematic, complex or novel to the Tribunal. Those 
cases selected from this process are referred to the Tribunal's medical 
counsellors to check that the medical assessment of the worker's injury is 
complete and that the record contains opinions from appropriate experts where 
required, and to ensure that questions or concerns about the medical issues that 
may need clarification are identified. 

At the pre-hearing stage, medical counsellors may recommend getting more 
information from the patient's treating physician(s). In addition, counsellors may 
recommend obtaining a medical assessor's opinion if the diagnosis of the worker's 
condition is unclear, if there is a complex medical problem that needs explanation, 
or if there is an obvious difference of opinion between qualified experts. 



33 



Workers 7 Compensation Appeals Tribunal Annual Report 1995 and 1996 



At the post-hearing stage, panels requesting further medical investigation 
may request the assistance of MLO in preparing specific questions that may be 
helpful in resolving medical issues that are troubling to the panel. Counsellors 
assist MLO in providing additional questions for the hearing panel's 
consideration, which if approved are passed to the medical assessor. 



Provision of information 

MLO continues to place in the WCAT Library, medical reports and 
transcripts of WCAT experts on medical/ scientific issues that contain 
information that may be useful in future appeals. This collection of medical 
reports specific to issues that arise in the workers' compensation field is unique 
within the Ontario WCB system and is accessible to the public. Discussion 
papers on general medical topics that frequently arise in compensation matters 
are prepared by the Tribunal's medical counsellors or medical assessors and are 
also available in the Library. 



Audit 

In addition to case-specific medical evidence issues, MLO co-ordinates the 
Tribunal's medical audit. The purpose of the audit is to obtain from the medical 
counsellors a medical professional's perspective on the manner in which 
medical facts or theory are treated or recorded in Tribunal decisions. The audit 
permits the Tribunal to evaluate its processes and practices as they relate to 
medical issues and medical evidence. The audit highlights areas where medical 
education initiatives for Tribunal staff and members are indicated. 



MLO and the Medical Component 
Medical assessors 

The Tribunal has the power to initiate further medical investigations to 
determine any medical question at issue on an appeal. Such investigations, 
including further examination of a worker, may be referred to qualified medical 
practitioners on a list of authorized practitioners ( the Tribunal's "medical 
assessors") who are appointed by the Lieutenant Governor in Council. 

The Tribunal continues to retain and attract to its medical assessor roster 
many of the Province's most distinguished medical experts. A concerted effort 
has been made to recruit qualified female physicians and doctors with diverse 
cultural and language backgrounds. 

The medical assessor may be asked for an opinion as to the validity of a 
particular medical theory which a hearing panel has been asked to accept, or to 
provide a diagnosis if the opinions on file are not clear or are in conflict, or to 
comment on the representative nature, quality or relevancy of a selection of 
medical literature that the Tribunal may have been asked to consider. 



34 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



The opinions are normally sought in the form of written reports containing 
the history, observations and test results on which the opinion is based. Copies 
of the reports are made available to the worker, employer and the WCB, and 
references will typically be made to the report in the Tribunal's reasons for its 
decisions. On occasion the practitioner will be asked to appear at the hearings 
and give oral evidence. 



Medical counsellors 

The Tribunal's medical counsellors are a group of senior specialists who 
serve as wise counsel to the Tribunal in the medical area generally. The medical 
counsellors group is chaired by Dr. Douglas P. Bryce. (A list of the medical 
counsellors can be found in Appendix D.) 

Cases selected by MLO are referred to the Tribunal's medical counsellors to 
ensure that the medical assessment of the worker's injury is complete, the 
record contains opinions from appropriate experts when required, and 
questions or concerns about the medical issues that may need clarification for 
the hearing panel are identified. Unlike the medical assessors, the counsellors 
do not examine workers nor do they give evidence or otherwise communicate 
with hearing panels in individual cases. Where this role is required, the 
counsellors make a recommendation to MLO that an assessor be retained. 

Counsellors participate in the internal audit referred to above and, through 
an ongoing series of lectures, the counsellors also contribute to enhancing the 
level of the Tribunal's general medical literacy. 



SCHEDULING 



Regional Hearing Rooms 

The Tribunal conducts regional hearings throughout the province. In 1995, 
the Tribunal began to hold hearings in a variety of government buildings in the 
regions. This was a departure from the practice of using hotel board rooms, and 
was motivated by the desire to take advantage of government facilities which 
were available to the Tribunal without cost. 

By late 1996, the Tribunal revisited the issue of the use of government board 
rooms as our experience with the arrangements was unsatisfactory. The scarcity of 
available, suitable government board rooms in central, convenient locations was a 
significant obstacle. As well, the lack of administrative support, communication 
difficulties and lack of access to facilities such as fax machines and photocopiers 
were issues of concern raised by the participants in the hearings. 

After assessing the experience with the government facilities, it was decided 
in October 1996 to return to the previous practice of using hotel board rooms for 
the regional hearings. 



35 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



INFORMATION DEPARTMENT 



Library Services 

The Library is responsible for the provision of information services to 
Tribunal staff and Members as well as other parties involved in workers' 
compensation issues. 



Service to the workers' compensation community 

The mission of the Library, as expressed in the Tribunal's 1988 Statement of 
Mission, Goals and Commitments (reproduced as Appendix A to the Tribunal's 
Third Report, 1987-1988), has been to: 

... provide access to information which is not conveniently assembled 
elsewhere, and which workers and employers, members of the public, 
professional representatives, and Members and staff of the Tribunal require 
if they are to truly understand the workers' compensation system and the 
issues which it presents, or be able to prepare on a fully informed basis for 
presenting or dealing with such issues in individual cases. 

Since its inception, the Library has remained committed to this mission. Its 
resources, which include traditional paper formats as well as CD-ROM and 
in-house databases, comprise one of the most extensive collections of workers' 
compensation research materials in Canada. Librarians index materials on 
in-house databases so as to provide ready access to unique and otherwise 
inaccessible items including policy documents, conference papers, WCAT 
medical reports, book chapters and articles. The librarians assist users with a 
variety of backgrounds and needs from simply locating a specific item to 
detailed research on complex workers' compensation issues. The combination of 
a well-developed collection and a commitment to service has created a place for 
the WCAT Library as a vital and unique resource for both internal and external 
users. This has become increasingly apparent during the reporting period and is 
reflected in increased usage. 



The WCAT web site 

In order to provide another means of disseminating information about the 
Tribunal and its processes to the public, particularly workers, employers and 
their representatives, the Library created a WCAT web site in 1996. 

The site includes information on the Tribunal's appeal processes, services 
and publications. The Practice Directions and recent issues of WCAT In Focus 
are also featured. As well, there are links to related external web sites such as 
the WCB's home page and the Workers' Compensation Act 

The purpose of the web site is to provide current information about the 
Tribunal to anyone with Internet access. This should address the increasing 
expectation by Tribunal stakeholders that information be available through this 



36 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



new medium. It remains to be seen how a web presence affects requests for 
information through traditional means. 

This first phase of our web site experiment has a simple and 
straightforward format, and we can look forward to it evolving into a thorough 
information source and research tool over time. 

The web site address is http://www.wcat.on.ca. 



Access to Internet resources 

In addition to providing a web presence for the Tribunal, the Library 
started providing staff and Members with access to the increasingly useful 
resources available on the Internet. The librarians assist users in accessing the 
Internet at one of the Library terminals and train Tribunal staff in searching the 
Internet, particularly the World Wide Web. 



Addition of the CD-ROM format 

During 1996, staff began the process of evaluating CD-ROM products for 
use in the Library. It became apparent that there would be significant space 
savings without additional cost. Increased search capabilities and desktop 
access were other beneficial factors to be considered. 

CD-ROM versions of the Canadian Encyclopedic Digest, the Ontario 
Statutes and Regulations, and Physicians Silverplatter Occupational and 
Environmental Medicine were purchased. In addition, the Library acquired one 
of the Canadian Centre for Occupational Health and Safety's CD-ROM products 
on a complimentary basis in return for supplying Tribunal data to the CCOHS. 
The four products are now available for use on a public access computer in the 
Library; they will be evaluated before making further purchases or mounting 
products on the Tribunal network. 

Library staff are now making themselves familiar with these products and 
taking advantage of training provided by vendors and librarians' organizations. 



Library statistics 

Statistics for the years 1994 through 1996 are included so as to provide a 
means of comparison. 

Collection Development 

Additions to the book and government document collections: 
1994: 160 1995: 136 1996: 226. 

Additions to the in-house database of articles, WCB documents, WCAT 
Medical Reports: 

1994: 1056 1995: 1086 1996: 1366. 



37 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Usage 

Documents borrowed by Tribunal staff and Members: 
1994: 285 1995: 327 1996: 306. 

Interlibrary loan and document delivery: 

1994: 395 1995: 326 1996: 441. 

Reference service 

Directional requests (usually locating a specific item): 
1994: 628 1995: 1068 1996: 1160. 

Reference requests (requiring more detailed research): 
1994: 962 1995: 972 1996: 985. 



Publications Department 
Accomplishments 

During the reporting period, the Publications Department completed a 
long-term project which has resulted in the Decision Digest Service (DDS) 
binders now containing summaries for all Tribunal decisions. The DDS started 
in January 1990, and has provided summaries for all Tribunal decisions released 
since then. However, summaries for pre-1990 decisions were not included 
(though the indexes in the Cumulative Index binder had always covered all 
decisions released from the commencement of the Tribunal). Two 
supplementary binders were added to the DDS which cover the summaries for 
the approximately 4,000 pre-1990 decisions. Summaries were written for those 
pre-1990 decisions which had never been summarized. The existing summaries 
were re-keyworded so that all decisions in the DDS are classified using the 
current set of keywords. The publication, Numerical Index of Decisions, thus 
became redundant. 

The DDS On Disk - Windows Version was made available to subscribers 
during the reporting period. Previously it had only been available for public 
searching in the Tribunal's Library. The Cardbox for Windows search software 
offers such familiar Windows features as point and click selection, drop down 
menus, a more readable search screen and on-line help. The Tribunal no longer 
offers the DOS version of the DDS On Disk to new subscribers (though updates 
will continue to be provided to existing DOS subscribers). 

The Publications Department has changed the production process for the 
Tribunal's newsletter, WCAT In Focus, to make printing of the newsletter faster 
and cheaper. WCAT In Focus will no longer appear at set quarterly intervals. It 
will be published as needed to keep readers informed of changes at the Tribunal. 

The procedure for releasing decisions to the parties and the Board has been 
revamped. As a result, files can be closed at the Tribunal and returned to the 



38 



Workers 7 Compensation Appeals Tribunal Annual Report 1995 and 1996 



Board more quickly. The Board, therefore, can begin to implement any actions 
required by Tribunal decisions more quickly. 

In 1994, the Publications Department released and summarized just over 
1,000 Tribunal decisions. In each of the years 1995 and 1996, it released and 
summarized, on average, more than 1,400 decisions per year, a 40% increase. 



Proposals 

The Publications Department plans to publish a Consolidated Index 
covering volumes 1 to 38 of the WCA T Reporter. This special volume of the 
Reporter would make research of the decisions in the Reporter much faster. It 
could contain, in a consolidated format, a bilingual Table of Cases, Subject 
Matter Index and Keyword Index. 

The Tribunal is in the process of negotiating an agreement with QL Systems 
Ltd. which would see the full text of Tribunal decisions placed on QL's database 
system. This would greatly increase accessibility to online searching of the 
Tribunal's decisions, particularly for the legal community. 

The Publications Department may soon acquire desktop faxing capability. 
This could lead to a review of its Photocopy Service pricing structure. 



SYSTEMS DEPARTMENT 

The goals for the Systems Department in 1995 included the ongoing project, 
started in 1994, of upgrading our old system to a more robust environment that 
permitted the use of microcomputer based technology. It included a new word 
processing package, electronic mail program and network operating system, 
additional hardware and the transfer of legacy information to the new 
environment. Further goals set for 1996 encompassed a new an ti- virus program 
for all computers, an upgraded electronic mail system which included group 
conferencing, test installation of a new operating system, setting up of a modem 
pool to allow shared access to outside resources and portable computers 
(notebooks) for OICs to use in decision-writing. In addition to the above items, 
there was an ongoing project to provide training and support in the use of the 
new software/ hardware and utilities to assist in daily work. 

The migration from one system to another required months of preparation, 
including the conversion of thousands of existing documents, forms and 
templates. All of the above projects were completed on time and within the 
allocated budget. 

In 1997, we plan to continue upgrading our client computers to the 
Windows 95 operating system and the related software packages they utilize. 
The NT Server computers are also scheduled for upgrades and patches as they 
become available and are tested. As the end users are becoming more familiar 
with the computers we are receiving requests for new custom applications 
which we plan to provide. 



39 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



STATISTICAL SUMMARY 

This statistical report provides an overview of the Tribunal's production 
and caseload inventory trends. The report begins with an accounting of the 
numbers and types of cases received. This is followed by a section providing the 
numbers and types of cases closed. The third section describes the current 
caseload (the cumulative difference between cases received and cases closed) 
sometimes referred to in this report as "inventory" of cases. In the fourth 
section, typical overall case-completion times are discussed. The next section 
examines the hearing and decision production figures. Finally, hearing 
representation profiles are presented regionally for workers and for employers. 



Cases Received 

The breakdown of incoming cases is presented by year and by appeal type 
in Table 1 (p. 45) and by general appeal categories in Chart 1 (p. 46). In 1996, the 
Tribunal's total incoming caseload was the highest ever experienced. This total 
(3,598 cases) represented a continuation of the upward trend that had begun in 
1991. The 1996 total represented an increase of 54% over the 1995 total (2,337), 
and an increase of 128% over the 1991 total (1,579). 

The Tribunal's incoming caseload increase was most pronounced in the core 
"entitlement" category where the workload per case is most substantial. This 
category includes appeals relating to benefits entitlement, reinstatement and 
vocational rehabilitation obligations and employer assessments. Since 1991, 
when the caseload increase began, the number of cases received in this principal 
category each year had increased by the end of the reporting period 238% (from 
834 cases in 1991 to 2,819 in 1996). The proportion of entitlement cases to the 
total intake has increased since 1991 from 53% to 76%. 

In contrast to the proportional increase of entitlement-related cases, we note 
the proportional decrease of "special section" cases. (Special section cases refers 
to applications on matters where the Tribunal has exclusive jurisdiction, 
including leave applications, right to sue matters and medical examination 
matters, and appeals relating to access to medical records.) In total, special 
section cases were reduced in proportional terms to 16% of the Tribunal's 
overall intake in 1996, as compared to 35% of the overall intake in 1991. 

Post-decision cases (Ombudsman's investigations, judicial reviews and 
requests to reconsider earlier Tribunal rulings) represented in 1995 and 1996 a 
typically small portion of the total caseload (6% and 5% respectively). 



Case Dispositions 

In 1996, the Tribunal disposed of 2,512 cases (Table 2, p. 47). This number 
represented a major increase from the total number of cases disposed of in any 
other year of the Tribunal's history. The 1996 total was 17% higher than the 1995 
total, and 40% higher than the 1994 total. 



40 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Entitlement-related cases (including benefits entitlement, as well as 
employer assessments, reinstatement and vocational rehabilitation obligations) 
represented 66% of the cases disposed of in 1996, special section cases 
accounted for 22%, post-decision issues accounted for just over 7%, and 
jurisdiction cases another 4%. This compares with 56%, 31%, 11% and 2% 
respectively in 1991. 

In anticipation of the terminology that has been adopted in the Tribunal's 
operational plan for 1997, we have in this Annual Report introduced the 
categories of "pre-hearing dispositions" and "post-hearing dispositions". 
Pre-hearing dispositions include the cases previously recorded as "withdrawn" 
as well as those previously recorded as dispositions for "non-jurisdictional" 
reasons or those cases that were "abandoned". The abandoned cases were those 
that were not formally withdrawn but where consistent failure of the appellant 
to reply to communications finally led the Tribunal to conclude that the case 
had been abandoned. 

Cases that are recorded as "withdrawn" have usually involved some 
substantial administrative and professional work on the part of the Tribunal. A 
proportion are identified quickly in the intake phase of the Tribunal's process as 
simply being in the wrong place - there has been no "final decision" at the 
WCB - or the appeal is premature, etc. Once the appellant is advised of those 
circumstances, he or she withdraws the appeal and reverts to dealing with the 
WCB on the case. Another proportion of withdrawals also occurs at the intake 
phase but after the Tribunal case analysts have analyzed the case and have 
identified issues that a WCAT hearing panel will probably need to have the 
WCB resolve before the appeal can be heard by the Tribunal. Again, when this 
probability is brought to the attention of the appellant, the frequent response is 
to withdraw the appeal while the remaining issues at the Board are decided. 

We do not track the proportion of cases withdrawn in these two sets of 
circumstances that re-appear at WCAT as new appeals at some later time. The 
withdrawals are counted as "dispositions" and the anecdotal evidence suggests 
that a significant proportion of them are finally resolved at the Board without 
having to come back to the Tribunal. 

Another number of withdrawals will occur in the Tribunal Counsel Office's 
administration of the case as it prepares the case for hearing and discovers 
matters that need to be addressed at the WCB before the case is ready to be 
dealt with by a Tribunal hearing panel. Also, with the introduction under Phase 
I of the Tribunal's Restructuring Plan of the dedicated Vocational Rehabilitation 
panel and its experimentation with pre-hearing and in-hearing ADR techniques, 
a number of cases are withdrawn at that stage when a settlement between the 
worker and the employer has been reached which is satisfactory to the parties 
and the Tribunal panel. A withdrawal of the appeal may be the technical means 
necessary to give effect to the settlement. 

It is anticipated that under the Tribunal's Phase II Restructuring Plan with 
its increased emphasis on the ADR possibilities, there will be a significant 
increase in this category of withdrawals. 



41 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



In 1996, post-hearing dispositions accounted for the majority of dispositions 
(69% of the entitlement-related cases). Among the pre-hearing dispositions, 
withdrawals were most common. (Pre-hearing withdrawals accounted for 30% 
of the total dispositions). Case abandonments accounted for 7% of the total 
dispositions, findings of no-jurisdiction accounted for 3%, and other unspecified 
dispositions accounted for the remaining 7% of the total. There were similar 
figures in 1995. (Please refer to Table 3, p. 48) 



Inventory - Backlog 

Chart 2 (p. 49) presents the trend lines for incoming cases, cases disposed 
of, and the resulting inventory of cases remaining. The rising trend in the 
Tribunal's incoming caseload began in 1991. The increase for 1991 was relatively 
minor, and that year, the Tribunal disposed of approximately 200 cases more 
than it opened. In 1992, the incoming caseload increased more sharply, but the 
Tribunal's production (case dispositions) did not keep pace. As a result, the 
inventory grew by approximately 140 cases. In 1993, there was a further and 
more pronounced increase in the incoming caseload, and although the 
production also rose to near peak levels, the inventory nonetheless expanded by 
another 288 cases. In 1994, the rise in the number of incoming cases was modest. 
However, the intake began to accelerate dramatically part-way through 1995. 
Productivity increases began to follow suit and by the end of 1995 the Tribunal 
had narrowed the gap between the annual number of cases opened and the 
annual number of dispositions to within 196 cases. But, by the end of 1995, the 
total inventory had still accumulated to over 2,400 cases. 

In 1996 the incoming caseload continued to accelerate, and even though the 
Tribunal set another new record level in terms of the total number of 
dispositions, the production total was overwhelmed by the influx of new 
appeals. By the end of 1996, the total number of cases in the Tribunal's 
inventory had reached 3,515. 

An analysis of this total caseload inventory was undertaken in order to 
quantify the proportion that represented "backlog". In the Tribunal's 
terminology, backlogs are measured by the extent to which the Tribunal's actual 
performance has fallen short of planned goals. Backlog is to be contrasted with 
"workload". The Tribunal's workload is the number of cases to be found in its 
processes at a point of time when it is, on average, disposing each month of the 
same number of cases that it received that month while at the same time meeting 
its agreed speed-of-disposition standards. 3 The total "inventory" of cases to be 
found within the Tribunal's doors at any point in time is comprised of the 
workload plus any backlog. When the Tribunal is meeting its performance 
standards the inventory and the workload will be one and the same thing. 



The Tribunal's speed-of-disposition standards formally adopted at the end of the reporting 
period, are that 60% of all cases received will be disposed of within eight months and at an 
average of six months per case, 20% will be disposed of within 1 1 months at an average of 
nine months per case, 15% will be disposed of within 15 months at an average of 12 months 
per case, and 5% will be disposed of within 18 months at an average of 16 months per case. 



42 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



An analysis of the workload implications of the above-mentioned 
speed-of-disposition standards indicates that, if the Tribunal were meeting 
those standards while disposing of cases at a rate matched to the 1996 incoming 
level (300 per month), the Tribunal's workload at any point of time would be 
2,400 cases. This workload would include the 300 cases received in the month 
just past, and the 300 cases to be disposed of in the month ahead and all of the 
cases progressing through the Tribunal's processes in the ordinary course 
between those two points. 

As noted above, the total caseload inventory had reached 3,515 cases by the 
end of December 1996. The backlog portion amounted, therefore, to 1,115 cases 
(3,515 minus 2,400). 



Case Completion Times 

Of course, because of the inability to match production with intake during 
this period the Tribunal did not perform up to the specified speed-of-disposition 
standards. 

For cases that were disposed of in 1996 in the entitlement and right to sue 
categories (i.e., not counting the less work-intensive cases such as medical 
examination, file access and post-decision review), the median age at closing had 
reached nearly 14 months. Approximately 18% of the completed cases were 
resolved within six months and another 22% were completed between six and 
twelve months. Thus, while approximately 40% were completed within a one-year 
time frame, approximately 26% took between 12 and 18 months, and approximately 
34% required more than 18 months. (Please refer to Tables 4 and 5, p. 50) 

This "age at closing" measure includes all of the days (including weekend 
and statutory holiday days) between the receipt of the initial appeal request and 
the date of administrative closing. In addition to the time backlogged cases 
spent waiting to enter the process, the age at closing measure includes days the 
Tribunal spent waiting for the WCB claim files, days spent waiting for appeal 
applications and response forms to be received, days spent waiting for the 
agreed upon hearing dates to arrive, and the days involved in post-hearing 
investigations. It also includes the time spent in the administrative closing 
process, or in other words, the time spent gathering, referencing and filing the 
appeal records after decisions have been delivered. 



Hearings and Decisions 

In 1996, the Tribunal posted record high production levels in all hearing 
and decision production categories. For example, the total number of cases 
heard in 1996 (1,449) was 18% higher than 1995 and 35% higher than 1992. 
(Refer to Table 6, p. 51) 

In 1996, the Tribunal conducted 1,563 hearings, and released 1,460 
decisions. Most of the decisions represented final rulings (1,175) and there were 
interim decisions (187) and rulings on reconsideration matters (98) as well. 
(Refer to Table 7, p. 51) 



43 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



The hearings were most often conducted in the formal, oral format. Oral 
hearings accounted for 82% of the hearings in 1996. Another 9% of hearings 
were accounted for by panel reviews of the written record and written 
submissions (8% of entitlement cases and 38% of the special section cases). 
Other panel caucuses, for dealing, for example, with reconsideration 
applications, accounted for the remaining 8%. 



Representation at Hearings 

Employers were most often represented by company personnel (approximately 
44% of the time). Consultants were their next most frequent representation choice 
(17%), followed by lawyers (14%), and the Office of the Employer Adviser (11%). In 
the remaining cases (14%), the employers chose not to attend. 

Workers chose consultants most commonly (approximately 27% of the time 4 ), 
followed by the Office of the Worker Adviser (24%), lawyers and legal agencies 
(23% of the time), and union representatives (approximately 14% of the time). 
Workers were unrepresented (i.e. self represented) 9% of the time and they used 
various other, unidentified types of representatives approximately 3% of the time. 

When this data is examined by region as in Table 8 (p. 52), we see that for 
employers in the North, there is a much stronger emphasis on representation by 
company personnel. In the Toronto region, there is a stronger emphasis on 
representation by consultants (19%). For worker representation it is interesting to 
note the very strong preference for OWA representatives in the Northern region 
(47%). 



FINANCIAL MATTERS 

Statements of Expenditures and Variances for the years ended December 31, 
1995, and December 31, 1996, (Tables 9 & 10, p. 53) and Statements under the 
Public Sector Salary Disclosure Act for 1995 and 1996 (Tables 11 & 12, p. 54), are 
included in this report. 

The accounting firm of Deloitte & Touche has completed a financial audit on 
the Tribunal's financial statements for the period ending December 31, 1995. The 
audit reports are included in this report as Appendix E. The audit on the financial 
statements for the period ending December 31, 1996, is not yet available. 



In 1994, this figure was 12% and in 1991, 6%. In 1991, 22% of workers were unrepresented 
and in 1 996 that had fallen to 9%. 



44 



Workers 7 Compensation Appeals Tribunal 



Annual Report 1995 and 1996 



TABLE 1 



Annual Breakdown of Incoming Cases 






1991 1992 1993 


1994 


1995 1996 




No. (%) No. (%) No. (%) 


No. (%) 


No. (%) No. (%) 




Leave 31 2 35 2 13 l 


17 i 


17 1 12 o 




Right to Sue 127 8 124 7 113 5 


49 2 


45 2 47 1 




Medical Exam 65 4 76 4 49 2 


41 2 


26 1 23 1 




Access 324 21 370 20 511 24 


506 23 


466 20 448 14 




Special Section subtotal 547 35 605 33 686 32 


613 28 


554 24 530 16 




Classification Pending * o o o 


o 


343 n/a 




Pension 2 o 58 3 84 4 


32 i 


12 1 35 1 




N.E.L/F.E.L ** o 3 o 13 i 


34 2 


66 3 237 7 




Commutation 6 o 26 i 36 2 


35 2 


33 i 40 i 




Employer Assessment 6 o 25 l 26 1 


58 3 


78 3 169 5 




Entitlement 788 50 816 45 988 46 


1099 50 


1255 54 1848 57 




Reinstatement 31 2 39 2 49 2 


56 3 


63 3 30 1 




Vocational Rehabilitation *** 1 Q 19 i 72 3 


80 4 


79 3 117 4 




Entitlement-related subtotal 834 53 986 55 1268 59 


1394 63 


1586 68 2819 76 




Judicial Review 4 o 7 o 9 o 


8 o 


5 5 




Ombudsman Request 65 4 45 2 50 2 


35 2 


50 2 48 1 




Reconsideration 85 5 61 L 63 3 


74 3 


94 4 126 4 




Post-decision subtotal 154 o 113 6 122 6 


117 5 


149 6 179 5 




Jurisdictional issues subtotal 44 3 103 6 77 4 


77 3 


48 2 70 2 




TOTAL 1579 1807 2153 


2201 


2337 3598 




* NOTE: This category represents cases that had been started at the Tribunal by 31-Dec-96, but had not been classified for 




appeal type by the time of this report writing. These cases are treated as missing for purposes 


of the percentage 


calculations. 






** NOTE: This category represents appeals related to the non-economic loss and future economic loss pension criteria 


introduced by Bill 162. 






*** NOTE: This category represents appeals related to the increased Vocational Rehabilitation requirements introduced by Bill 1 62. 



45 



Workers' Compensation Appeals Tribunal 



Annual Report 1995 and 1996 



CHART 1 



Incoming Cases by Category 



Cases Received in 1995 



Special Section 24% 




Post-decision Issue 6% 
Jurisdictional Issue 2% 



Entitlement 68% 



Cases Received in 1996 



Special Section 1 6% 




Post-decision Issue 5% 
Jurisdictional Issue 2% 

Entitlement 76% 



Post-decision issues include reconsideration application, 

Ombudsman's inquires and judicial review cases. Entitlement 

includes pension issues, NEL and FEL appeals, employer appeals, 

reinstatement issues and vocational rehabilitation appeals. 



46 



Workers' Compensation Appeals Tribunal 



Annual Report 1995 and 1996 



TABLE 2 



Annual Breakdown of Cases Closed 

1991 1992 1993 
No. (%) No (%) No. (%) 


1994 
No. (%) 












1995 
No. (%) 


1996 
No. (%) 




Leave 55 3 29 2 31 
Right to Sue 108 6 113 7 101 
Medical Exam 66 4 70 4 54 
Access 313 18 389 23 522 
Special Section subtotal 542 31 601 36 708 


2 
5 
3 

28 
38 


15 

84 

40 

499 

638 


1 

5 

2 

28 

36 


15 

57 

29 

474 

575 


1 

3 
1 

22 
27 


15 

49 

26 

469 

559 


1 

2 

1 

19 

22 




Pension 172 10 50 3 63 
N.E.L./F.E.L * o 1 o 3 
Commutation 1 i 10 i 26 
Employer Assessment 22 i 24 1 18 
Entitlement 792 45 729 44 794 
Reinstatement 4 o 31 2 34 
Vocational Rehabilitation ** o 5 o 25 
Entitlement-related subtotal 1000 56 850 51 963 


3 


1 
1 

43 
2 
1 

52 


49 
12 
34 
22 

766 
28 
52 

963 


3 

1 

2 
1 

43 
2 
3 

54 


54 
32 
29 
41 

1111 
57 
65 

1389 


3 
i 

i 

2 

52 

3 

3 

65 


28 
58 
41 
85 

1307 
56 
83 

1658 


1 
2 
2 
3 

52 
2 

3 

66 




Judicial Review 8 o o 15 

Ombudsman Review 112 6 53 3 42 

Reconsideration 76 4 67 4 61 

Post-decision subtotal 196 11 124 7 118 


1 
2 
3 
6 


3 

42 

63 

108 



2 
4 
6 


7 

42 

85 

134 



2 
4 
6 


6 

52 
126 
184 



2 
5 
7 




Jurisdictional issue subtotal 38 2 89 5 76 


4 


83 


5 


43 


2 


111 


4 




TOTAL 1776 1664 1865 




1792 




2141 




2512 






* NOTE: This category represents appeals related to the non-economic loss and future economic loss pension criteria 

introduced by Bill 162. 
** NOTE: This category represents appeals related to the increased Vocational Rehabilitation requirements introduced by Bill 1 62 





47 



Workers' Compensation Appeals Tribunal 



Annual Report 1995 and 1996 



TABLE 3 



Case Closing Dispositions 








1995 

Pre-hearing dispositions 

Withdrawal 
Abandonment 
No Jurisdiction 
Other (miscellaneous) 
Subtotal 


Jurisdictional Entitlement 
issue related 

m m 

14 16 
19 14 
63 1 
2 1 
98 32 


Special 

section 

L%1 

75 





3 
78 


Post 

decision 

L%1 

1 





47 
48 


ALL 
CASES 

(%1 

31 

9 

2 

5 
47 


Post-hearing dispositions 

Subtotal 


2 69 


21 


51 


53 


1996 










Pre-hearing dispositions 

Withdrawal 
Abandonment 
No Jurisdiction 
Other (miscellaneous) 
Subtotal 


1 18 

28 7 

27 3 

44 3 

100 31 


78 
1 

6 

85 


2 
17 



29 
48 


30 
7 
3 
7 

47 


Post-hearing dispositions 

Subtotal 


69 


15 


52 


53 



48 



Workers' Compensation Appeals Tribunal 



Annual Report 1995 and 1996 



CHART 2 



Incoming and Completed Cases 



4,000 




1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 



RECEIVED CLOSED INVENTORY 

TOTAL TOTAL (Remaining Cases) 



49 



Workers' Compensation Appeals Tribunal 



Annual Report 1995 and 1996 



TABLE 4 



Aging Analysis for Closed Cases 



Medical Exam and Access 
Right to Sue and Entitlement-related 
Post-decision Issues 
Jurisdictional Issues 

All Cases 



Closed 


Closed 


in 1995 


in 1996 


(median) 


(median) 


72 


71 


399 


423 


229 


236 


41 


96 



290 



334 



Note: The age represents the total number of calendar days between the 
receipt of the appeal and the closing of the file. 



TABLE 5 



Distribution of Completion Times 



Percentage of Cases Completed 





Within 


6 Months 


6 to 1 2 Months 


1 2 to 1 8 Months 


More than 1 8 Months 




1995 


1996 


1995 


1996 


1995 


1996 


1995 


1996 


Medical Exam and Access 


91 


89 


7 


6 


2 


1 


1 


4 


Right to sue and Entitlement* 


23 


18 


23 


22 


21 


26 


33 


34 


Post-decision Issues 


42 


36 


31 


37 


13 


13 


14 


14 


Jurisdictional Issues 


98 


60 


2 


3 











37 



ALL CASES 



41 



35 



19 



16 19 



24 



27 



Note: The "right to sue and entitlement" category also includes leave applications, reinstatement appeals, vocational 
rehabilitation issues, employer assessment appeals, pension and wage loss appeals and pension commutation issues. 



50 



Workers' Compensation Appeals Tribunal 



Annual Report 1995 and 1996 



TABLE 6 



Scheduling, Hearings and Decisions 



1992 



1993 



1994 



1995 



1996 



Scheduling Dates Arranged* 


1397 


1580 


1697 


1591 


2032 


Hearings Conducted 


1231 


1239 


1415 


1332 


1563 


Cases Heard 


1076 


1120 


1299 


1223 


1449 


Decisions Issued 


1074 


907 


1031 


1403 


1460 


Cases Disposed by Decision 


920 


839 


862 


1148 


1302 



Note: Due to the inevitability of a small portion of pre-hearing adjournments, it is necessary each year 
to arrange more hearings than actually take place. In 1996, the number of scheduling dates exceeded 
the number of hearings by a larger factor than usual. However, this was not due to an unusually high 
rate of pre-hearing adjournment. Instead, it was the result of a tendency to set the dates further into 
the future than had been typical in prior years. 



TABLE 7 



Decisions Issued by Decision Type 




1995 1996 


Interim 

Final 

Reconsideration 


191 187 

1127 1175 

85 98 


TOTAL 


1403 1460 



51 



Workers' Compensation Appeals Tribunal 



Annual Report 1995 and 1996 



TABLE 8 



Tribunal Hearing 


s Representation Profile 








Eastern 


Northern 


Southern 


Toronto 


TOTAL 




(%) 


(%) 


(%) 


(%) 


(%) 


EMPLOYER REPRESENTATION 












Company Personnel 


51 


60 


41 


41 


44 


Consultant 


7 


10 


13 


19 


17 


Lawyer 


15 


9 


11 


16 


14 


Office of the Employer Adviser 


15 


12 


18 


9 


11 


None 


12 


9 


18 


15 


14 




Eastern 


Northern 


Southern 


Toronto 


TOTAL 




(%) 


(%) 


(%) 


(%) 


(%) 


WORKER REPRESENTATION 












Consultant 


9 


17 


21 


31 


27 


Lawyer or legal aid/asst. 


39 


9 


33 


24 


23 


Office of the Worker Adviser 


23 


47 


20 


19 


24 


Other 


7 


2 


4 


3 


3 


Union 


9 


20 


19 


12 


14 


None 


14 


5 


2 


11 


9 


Notes: 












1 ) The representation is given for cases that received decisions in 1996. 






2) The Eastern region is represented by cases heard in Ottawa, the Northern 


region by 


cases heard in 


Sault Ste. Marie,Sudbury, Timmins and Thunder Bay, and the Southern region by cases heard in 


London and Windsor. The Toronto region 


ncludes cases 


heard in Toronto 


Hamilton, 


Burlington and 


Kitchener. 













52 



Workers' Compensation Appeals Tribunal 



Annual Report 1995 and 1996 



TABLE 9 



Workers' Compensation Appeals Tribunal 
1995 Statement of Expenditures and Variances 
as at December 31, 1995 (In $000's) 






1995 
Budget 


1995 
Actual 


Variance 
$ % 


Salaries & Wages 

Employee Benefits 

Transportation & Communication 

Services 

Supplies & Equipment 


8,260.0 
1,445.0 

501.0 
3,386.0 

275.0 


6,714.0 
1,182.0 

498.0 
3,229.0 

229.0 


1,546.0 

263.0 

3.0 

157.0 

46.0 


18.72 

18.20 

.60 

4.64 

16.73 


TOTAL OPERATING EXPENDITURES 


13,867.0 


11,852.0 


2,015.0 


14.53 


Capital Expenditures 
Social Contract Commitment 


98.0 
158.0 


82.0 
328.0 


16.0 
(170.0) 


16.33 
(107.59) 


TOTAL EXPENDITURES 


14,123.0 


12,262.0 


1,861.0 


13.18 



TABLE 10 



Workers' Compensation Appeals Tribunal 
1996 Statement of Expenditures and Variances 




as at December 31, 1996 (I 


n $000's) 










1996 
Budget 


1996 
Actual 


Variance 

$ % 


Salaries & Wages 

Employee Benefits 

Transportation & Communication 

Services 

Supplies & Equipment 


8,260.0 
1,445.0 

501.0 
3,386.0 

275.0 


6,797.0 
1,131.0 

506.0 
2,964.0 

195.0 


1,463.0 

314.0 

(5.0) 

422.0 

80.0 


17.71 

21.73 

(1.00) 

12.46 

29.09 


TOTAL OPERATING EXPENDITURES 


13,867.0 


11,593.0 


2,274.0 


16.40 


Capital Expenditures 
Social Contract Commitment 


98.0 
158.0 


46.0 
82.0 


52.0 
76.0 


53.06 
48.10 


TOTAL EXPENDITURES 


14,123.0 


11,721.0 


2,402.0 


17.01 



53 



Workers' Compensation Appeals Tribunal 



Annual Report 1995 and 1996 



TABLE 11 



Public Sector Salary Disclosure Act 




Employees paid $100,000 or more in 1995 




Name 


Position 


Salary Paid 


Taxable Benefits 


S. Ronald Ellis 


WCAT Chair 


$107,660.84 


$320.34 


Marvin Goldstein 


Publications Counsel 


$104,413.28 


$301.06 


Zeynep Onen 


WCAT Alternate Chair 


$101,581.14 


$299.86 


Eleanor Smith 


General Counsel 


$117,655.41 


$345.98 


Carole A. Trethewey 


Counsel to Chair 


$119,388.79 


$345.98 


Prepared under the Public Sector Salary Disclosure Act, 


1996. 





TABLE 12 



The Public Sector Salary Disclosure Act for the 
Calender Year Ending December 31, 1996 
Employees paid $100,000 or more in 1996 



Name 


Position 


Salary Paid 


Taxable Benefits 


Ellis, S. Ronald 


WCAT Chair 


$110,035.00 


$318.00 


Goldstein, Marvin 


Publications Counsel 


$104,412.00 


$299.00 


Prest, Carole 


Counsel to Chair 


$120,533.00 


$343.00 


Smith, Eleanor 


General Counsel 


$119,960.00 


$343.00 



I certify that the information provided on this form is correct in accordance with the Public Sector 
Salary Disclosure Act, 1996. 

Peter Taylor, Manager, Finance, March 4, 1997 



54 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Appendix A 



DECISION RELEASE POLICY 



Preface 

The Tribunal provides a final level of appeal for cases involving difficult, 
complex and frequently contentious issues. These include, for example, 
contested credibility issues, industrial disease issues, the multiple issues in 
vocational rehabilitation matters, return-to-work issues under s. 54, 
multiple-factor causation issues (often with conflicting medical evidence), 
Future Economic Loss (FEL) determination issues, assessment issues, 
interpretation and other legal issues, and chronic stress issues. The resolution of 
such issues commonly involves serious consequences for one or more of the 
parties and, often, for the system itself. The Act requires that the Tribunal 
provide written reasons for its decisions. 

The Tribunal's tripartite decision-making process involves a panel chair, a 
member representative of workers and a member representative of employers. 
The process is designed to give to decisions the care and attention appropriate 
to a final level of appeal. 

The time reasonably required to come to the point of releasing a decision 
varies significantly from case to case, but not uncommonly extends to several 
months. Experience demonstrates that it is impossible to predict how long any 
particular decision-making process will take. Even what may seem to be a 
straightforward case will sometimes prove difficult to resolve and take longer 
than expected to complete. There must, however, be a limit. The Tribunal has 
decided to draw a line at six months from the point where the hearing process - 
including any post-hearing investigations or submissions - is complete and the 
decision is finally ready to be made. 



The Policy 

1. All decisions will be released as soon as is practicable, but, in any event, 
effective September 1, 1995, no decisions will be outstanding more than 
six months following the completion of the hearing process and any 
post-hearing investigations or submissions. 

2. There may be exceptional circumstances in a particular case which require 
an exemption from this time limit. Such exemptions can only be authorized 
by the Tribunal's Alternate Chair or Chair after a discussion with the panel. 
In such event, the parties and the WCB will be advised of the exemption, of 
the reasons for it, and of the planned release date. 



55 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Background and Explanation 
The Reasons for Reasons 

The written reasons for the Tribunal's decisions serve many diverse 
purposes. They provide an explanation to the parties - and particularly the 
"losing" party - of how and why this decision and not some other decision was 
made. They give directions to the WCB for implementing the decision. They 
allow the WCB, its Board of Directors and other stakeholders to understand the 
Tribunal's justification for overruling or supporting the WCB's decisions. They 
make meaningful reviews of decisions - by the Tribunal itself (pursuant to its 
reconsideration powers), by the WCB Board of Directors pursuant to its Section 
93 powers, or by the Ombudsman or the Divisional Court - possible. They help 
parties and their representatives in future similar cases to understand the issues 
and evidence requirements in their cases. Consistency in decision-making 
depends on them, and they are the means through which that consistency may 
be evaluated by the Tribunal and by the parties and other interests. In respect of 
new matters of particular complexity, they are the means through which the 
Tribunal develops its own understanding of the issues. Reasoned decisions at 
the final level of appeal also contribute importantly to the information base for 
future WCB or Legislative policy initiatives. 

To serve these many important purposes, Tribunal decisions must be fully 
reasoned and must meet high standards of decision quality. 

Thus, the preparation of the Tribunal's decisions typically requires 
significant time, effort and attention. 



The Purpose of the Decision Release Policy 

While it regards the quality of its decisions to be of paramount importance, 
the Tribunal is also committed to the timely release of decisions. Decisions must 
serve the many purposes outlined above, but they must also provide an answer 
to the parties' questions within a reasonable time. 

During 1994, in too many cases, the Tribunal proved unable to meet that 
time commitment. After consulations with its panel chairs and members, the 
Tribunal has, therefore, decided to publish this policy specifying a decision 
release-time standard which the panel chairs and members have agreed is 
reasonable and practicable. 

The policy is intended to provide a standard of institutional expectations for 
the guidance of panel chairs and members. The policy will also provide parties 
with the means of assessing the reasonableness of their own expectations 
concerning the timing of the release of a decision, and of holding the Tribunal 
accountable. 



56 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



The Decision-making Process 

Tribunal decisions are made by tripartite panels in a post-hearing process 
that is inescapably complex. 

The process consists of the following elements: caucus discussions, often 
intensive, amongst the three panel members; the writing of a fully reasoned 
draft decision by the panel chair; review of that draft by each of the panel 
members (and, at a panel chair's or member's option, in the Tribunal's 
draft-decision review process); finalization of the draft by the panel chair; and, 
finally, the acceptance of the final draft by all three members of the panel (or by 
a majority only, followed by the writing of a reasoned dissent). 

In cases in which consensus is not easily reached, this process, or parts of it, 
may be repeated more than once before a decision is finally accepted by the 
panel or by a majority of the panel. 

Once a final draft has been approved and any dissent has been written, the 
decision is then released in official form by the Tribunal. 

This decision-making process occurs in a highly active environment. Over 
the course of a year, each full-time panel chair will typically be involved in a 
large number of decision-making processes, potentially 100 or more, with 
perhaps 20 or 30 of them in the ready-to-write status at any one time. The panel 
chair will be working with varying combinations of worker and employer panel 
members, each of whom will be involved at the same time with other 
combinations of members and panel chairs in identical processes in a large 
number of other cases. Panel members will be involved in approximately 200 
such processes in the course of a year, with perhaps 40 or 50 of these active at 
any one time. 

The logistics of this environment are, of course, further complicated by the 
fact that all of the decision-makers are also regularly involved in the hearing of 
new cases with differently constituted panels and are frequently assigned to 
out-of-Toronto hearings. 

In an increasingly high proportion of cases (currently about one-third), at 
some stage in the decision-making process - hopefully at an early stage - a 
panel will conclude that before it can be satisfied as to the "real merits and 
justice" of the case at hand it needs more or better evidence - typically more 
medical evidence - or more submissions. At that point, the panel will order 
further investigations or request submissions, and will put the decision-making 
on hold until those post-hearing processes are completed. 



Recent Problems in Releasing Timely Decisions 

Since 1992, as the average complexity of the cases has increased and the 
new issues presented by the 1989 amendments to the Act have begun to appear 
at the Tribunal, the burden of the decision-writing, particularly for the full-time 
panel chairs, has steadily increased. The extent of this development and its 



57 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



implications were not fully realized until 1994, with the emergence of 
decision-writing backlogs and significant delays in the completion of a number 
of these decision-making processes. 

These delays have not only arisen in difficult or complex cases, but have 
also appeared in a number of straightforward cases, as, contrary to what might 
be expected, in a backlog situation even straightforward cases may be delayed. 
This happens because when panel chairs begin struggling with a decision- 
writing backlog, they are soon faced with choosing which of the cases they 
should work on. If they devote themselves to making sure the newly heard, 
straightforward cases are completed in a timely fashion, then their 
already-delayed, difficult or complex decisions fall further behind. If they work 
on the delayed cases, the new straightforward cases fall into the backlog. The 
panel chairs sometimes make one choice and sometimes the other, and the 
result is that even straightforward cases suffer unexpected delays. 



The 1995 Decision-backlog Retrieval Strategy 

The scheduling formula for the full-time panel chairs is being changed to 
reflect this greater need for writing time, and the Tribunal is currently involved in 
an extraordinary effort to eliminate these backlogs. Many panel chairs are 
participating in extended periods of writing, without taking on new hearing 
assignments. In the short run, this will lead to some further delays in the time it 
takes cases to get to a hearing. However, with a few exceptions, by June 30, 1995, 
there will no longer be any decisions outstanding in excess of 12 months, and by 
September 1, 1995, there will be no decisions outstanding in excess of six months. 

After that, this new decision release policy will apply. 

S.R. Ellis, 

Tribunal Chair 



58 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Appendix B 



MINISTRY OF LABOUR CROSS-APPOINTMENT PILOT 
PROJECT 

Report to the Minister of Labour 
(i) Introduction 

In September 1993, a pilot project began as a result of a joint initiative on 
the part of the Ministry of Labour, the Office of Adjudication, the Pay Equity 
Hearings Tribunal, and the Workers' Compensation Appeals Tribunal. The 
purpose of the project was to evaluate the utility and effectiveness of 
cross-appointments of adjudicators between adjudicative agencies. 

Terms of Reference for the pilot project were developed among the three 
agencies and forwarded to the Minister of Labour. Representatives of each of 
the respective agencies were nominated for part-time Order-in-Council 
cross-appointments to the other participating agencies. Each of the nominees 
was interviewed by the "away" agency on the understanding that the away 
agency could veto any nominee it considered to be unsuitable. As it happened, 
all selected nominees were approved by the away agency. 

The cross-appointments were granted for three year terms, to expire in 
September 1996. Initially the pilot project was to run from September 1993 to 
September 1995, but was extended for one additional year to match the length 
of the OIC appointments. 

As a result, one representative of each agency was appointed to each of the 
other two agencies. Each "home" agency lost, therefore, a portion of the services 
of two of their own appointees. In return, each agency had available the services 
of two appointees from the other two agencies. The intent was to ensure 
reasonably equal provision of services. As will be seen below, this objective was 
not achieved in all respects. 

The participants underwent training sessions at their "away" agencies. The 
content of the training programs was left to the discretion of the away agencies. 

It should be noted that the Terms of Reference discuss cross-appointment of 
an entire panel between the Pay Equity Hearing Tribunal and the Workers' 
Compensation Appeals Tribunal. It was subsequently decided to limit the 
cross-appointment between those two agencies to an exchange of Vice-Chairs. 
Hence, all participants in the cross-appointment project were Vice-Chairs at 
their home agencies. 



59 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



The pilot project was shepherded by a steering committee comprised of a 
senior representative of each of the participating agencies, and the registrars of 
those agencies. The steering committee met on a regular basis to address 
problems or questions arising during the course of the project. 



(ii) The Terms of Reference for the cross-appointment pilot 
project 

The Terms of Reference for the project were developed by the steering 
committee, in consultation with the chairs of the three participating agencies 
(Appendix A).* The Terms of Reference defined the participants in the project 
and stipulated that time commitments by participants should be structured to 
ensure some degree of equity consistent with the particular scheduling needs of 
each agency. Scheduling was left to be determined by the registrars of the 
respective agencies, as though the cross-appointed member was a part-time 
member of the away agency. Scheduling problems were to be referred to the 
steering committee for resolution. The Terms of Reference confirmed that salary 
costs for each cross-appointee would be paid by the home agency, subject to 
payment of expenses by the away agency. 

Support services, supervision, and confidentiality requirements were to be 
imposed on the cross-appointees as though the cross-appointees were part-time 
members of the away agency. 



(iii) Critique of the project 

The six participants in the project wrote reports recording their experience.* 
A number of connected themes are to be found in those reports. 

Most importantly, all of the participants were satisfied that the transition 
from one agency to another agency was less difficult than they anticipated. The 
participants generally found that the principal tool for successful integration 
into the away agency was experience as an adjudicator. The participants found 
that the differences in the governing legislation did not present a substantial 
obstacle to integration. Procedural differences among the tribunals proved to be 
somewhat more difficult to absorb, and comments regarding training suggested 
that greater emphasis be placed on identifying procedural idiosyncrasies among 
the various agencies. 

Another consistent theme in the participants' comments was the sense that 
participation at the limited levels specified for the pilot project did not allow the 
participants to become sufficiently familiar with the environment of the away 
agency. The participants seemed to feel that a more in-depth involvement 
would be beneficial to the cross-appointment process. 



These documents were included in the Report to the Minister, but are not included in the 
Annual Report. 



60 



Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Finally, there seemed to be some consistent concern with the effect of 
administrative differences among the three participating agencies and the impact 
that this had on the participants. It was noted, in particular, that the scheduling 
requirements of the Pay Equity Hearing Tribunal were fundamentally 
inconsistent with the scheduling processes of the other two agencies. This caused 
substantial difficulties and inequities in the scheduling of the various participants. 
One participant in particular had virtually no hearing activity during the course 
of her cross-appointment to the Pay Equity Hearing Tribunal. 

A final concern that arose out of the project was something only partially 
anticipated in the Terms of Reference. During the life of the project, one of the 
participants left her position at the home agency and moved to another agency 
that was not a participant in this project. Fortunately, this individual was in a 
position to continue to offer her services to the away agency, but did so at the 
sufferance of her new home agency. Had this individual not been able to 
continue her participation, her away agency would have lost her services while 
continuing to be obligated, at least in principle, to permit its nominee to 
continue to provide service to the corresponding away agency. 

These concerns aside, it seems that the consensus among the 
cross-appointees who were able to participate in another agency in a 
meaningful way was that the experience was extremely beneficial to them. They 
felt that working with another agency significantly expanded their adjudicative 
skills by introducing them to new legislation and a different adjudicative 
milieu. The participants suggested, in their comments, that the experience gave 
them a more diversified background as an adjudicator, and increased their 
confidence in their ability to move easily to another adjudicative situation. 



(iv) Recommendations for future implementation 

It is the unanimous recommendation of the participating agencies in this 
project that the project be extended for a further two year period. As we see it, 
the project could continue in one of two ways. 

Obviously, it could be continued in its present format. The advantage of 
doing so is that the participating agencies are now familiar with the logistics of 
the arrangement and better able to take advantage of the scheduling flexibility 
that the project can offer. That flexibility can be enhanced particularly if the 
participating agencies are prepared to accept that there will not always be an 
equal exchange of time. 

On the other hand, the concerns of the participants outlined above could be 
addressed by revising the project. Noting that the principal problems that 
became apparent during this project involved the difficulty of scheduling 
part-time appointees, and the lack of an opportunity on the part of those 
appointees to participate fully in the "life" of the other agency, it appears that 
the best solution is to make the cross-appointment more substantial. The most 
effective way of achieving that would seem to be by way of secondment from 
one agency to another. The benefit of doing so is that it would enable each 
cross-appointee to become a full-time member of the away agency for a set 



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Workers 7 Compensation Appeals Tribunal Annual Report 1995 and 1996 



period of time. Such an arrangement would also enable the away agency to 
schedule the cross-appointee as though the person were a full-time member of 
that agency. It would also enable the participants to become fully familiar with 
the law and practice applied by the away agency. It may well be of interest to 
the government to adopt this suggestion if it is considering moving towards a 
more integrated system for administrative agencies. 

If this approach were adopted, we envision that the seconded individuals 
would be paid by the away agency, rather than the home agency. This would 
tie the financial obligation of each of the agencies more directly to the service 
provided. Under the present system, when one of the participants changed jobs, 
his/her original home agency was no longer in a position to comply with the 
terms of the pilot project. Assigning responsibility for payment to the away 
agency would alleviate that problem. 

We also recommend that participants in the cross-appointment project not 
be given a supplementary OIC appointment to accommodate the 
cross-appointment. It seems to us that it is simpler and easier to adjust an 
existing OIC appointment by including, as part of that existing appointment, 
the right to provide services to the away agency. The expanded appointment 
could be made for the duration of the appointee's existing appointment. 

Consequently, we are recommending that the program be extended for two 
years. We recommend that consideration be given to revising the project so that, 
during each of the years of that two-year period, the participating agencies 
second one Vice-Chair to each of the other agencies for a one-year period. If this 
approach is adopted, the away agency would be designated as the body 
responsible for remunerating the OIC appointee. 

Alternatively, we recommend continuing the project in its present format 
for an additional two years. If this approach is adopted, the home agency would 
be designated as the body responsible for remunerating the OIC appointee. 

In either case, we recommend that the participants be given expanded OIC 
appointments that permitted participation in both the home and away agencies. 

The underlying purpose of this project was to test the proposition that 
adjudicators are capable of moving from one legislative realm to another with 
relative ease. Noting the apparent confirmation of that hypothesis by the 
experience to date, it appears that intensification of the immersion in another 
agency would facilitate the integration of provincial adjudicators. 

It probably goes without saying that segmentation of adjudication increases 
costs. The greater the integration of adjudicators in related fields, the easier it is 
to administer, finance, train, etc., those adjudicators. The experience to date 
would also suggest that it may result in a better adjudicator. 

In summary, we see three compelling reasons for continuing the pilot 
project involving the three agencies in question: 



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Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



1. it provides significant experience benefits to the participants; 

2. it provides a method for assessing the viability of developing a streamlined, 
integrated adjudicative model within the Labour Ministry; 

3. it accomplishes these ends at no cost to the Ministry. 

In light of those benefits, we recommend the extension of the 
cross-appointment pilot project, in one of the formats outlined above, for a 
period of two years from September 1996 to September 1998. 

Laura Bradbury 

Chair, Office of Adjudication 

Ron Ellis 

Chair, Workers' Compensation Appeals Tribunal 

Phyllis Gordon 

Chair, Pay Equity Hearings Tribunal 

26/07/96 



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Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Appendix C 



PRACTICE DIRECTION: FEES AND EXPENSES 



General 

Under sections 74(c) and 92 of the Workers' Compensation Act, the 
Tribunal may refund certain expenses related to a worker's attendance at a 
hearing. The Tribunal may also pay certain expenses of a worker's witnesses, 
where their expenses are not already paid by their employer. Section 74(c) does 
not provide for payment of expenses to employers or their witnesses. 

Anyone who wants to claim for expenses must complete a "Hearing 
Expense Claim" . These forms are available at the reception desk at the 
Tribunal's Toronto office, or from the Panel at a regional hearing. 

Maximum rates for specific expenses are set from time to time. Current 
rates are printed on the Hearing Expense Claim. Some expense claims must be 
supported by a receipt. 

This Practice Direction does not apply to applications under section 17 of 
the Workers' Compensation Act. 



Witness Fees 

The Tribunal will pay workers, and their witnesses, witness fees if they have 
lost wages to attend a hearing. This payment is subject to a daily maximum. 

If you have received a summons, any money already sent with the 
summons will be deducted from the amount to be paid for lost wages. 



Out-of-Pocket Expenses for Hearings 

The Tribunal holds hearings in a number of cities throughout Ontario. Only 
a worker or witness who lives outside the metropolitan area where the hearing 
takes place, may claim the following out-of-pocket expenses. 

• Meals - up to a daily and per meal maximum. 

• Parking - if you drive and have a receipt, you receive up to a daily 
maximum. Without a receipt, you receive a minimum flat rate. 

• Travel - Train or inter-city bus fare is paid with a receipt. If you drive, car 
mileage is paid based on a set rate. 



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Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



For out-of-province travel, expenses are generally only paid from 
Winnipeg in the west and Montreal in the east. For example, if you are 
coming from British Columbia to Toronto, you are only paid travel 
expenses from Winnipeg to Toronto. Exceptional circumstances may be 
dealt with by a Panel. 

The Tribunal's Scheduling Department may help people travelling long 
distances to arrange transportation and accommodation. 

Reasonable costs for hotel accommodation may be approved by the 
Scheduling Department for workers and their witnesses based on the 
following considerations: 

• travel of more than 200 kilometres, one way; 

• the time of the hearing; and 

• weather conditions. 



Advance Payments 

The Tribunal may make payments to a worker before a hearing in 
exceptional circumstances. Requests may be made to the Scheduling Co- 
ordinator or to the Manager, Financial Administration. 



Professional Witnesses 

Fees for evidence obtained by the parties from professional witnesses are 
paid only if approved by the Panel. A Panel may approve payment where: 

• a professional report is found to be significant in the decision-making 
process; 

• oral evidence given by a professional witness has proved to be of 
exceptional importance to the decision-making process. 

Where a Panel orders payment of a party's professional witness, payments 
are based on the Tribunal's approved schedule of rates. 



Out-of-pocket Expenses to Attend a Medical 
Appointment 

Where the Tribunal's Medical Liaison Office has arranged for a worker to 
be examined by a doctor, requests for payment of expenses should be directed 
to the Medical Liaison Office or to the Manager, Financial Administration. 
Payments are based on the same rates as for Hearing expenses. 

Dated at Toronto, Ontario, this 5th day of February, 1997. 
Workers' Compensation Appeals Tribunal 
S.R. Ellis, Tribunal Chair 



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Workers 7 Compensation Appeals Tribunal 



Annual Report 1995 and 1996 



Appendix D 



VICE-CHAIRS AND MEMBERS IN 1995 AND 1996 

This is a list of Vice-Chairs and Members whose Order-in-Council 
appointments were active during the reporting period. The date given is the 
date of each appointee's first appointment in his or her current capacity. 
Individuals may have been active at the Tribunal under other appointments 
prior to the date indicated. 



Full-time 



Date of First Appointment 



Chair 

Ellis, S. Ronald 



October 1, 1985 



Alternate Chair 

Zeynep Onen 1 



Vice-Chairs 

Bigras, Jean Guy 
Cook, Brian 
Frazee, Catherine 
McCombie, Nick 
Mclntosh-Janis, Faye 
Moore, John 
Onen, Zeynep 
Sandomirsky, Janice 
Signoroni, Antonio 
Strachan, Ian 



December 17, 1987 
September 6, 1991 
September 3, 1992 
January 22, 1991 
May 14, 1986 
May 1, 1988 
October 1, 1988 
July 3, 1990 
October 1, 1985 
October 1, 1985 



Members Representative of Workers 



Cook, Mary 
Crocker, James 
Jackson, Faith 
Lebert, Raymond 
Robillard, Maurice 
Shartal, Sarah 
Thompson, Patti 



November 1, 1990 
August 1, 1991 
November 1, 1990 
June 1, 1988 
March 11, 1987 
November 1, 1990 
October 9, 1991 



Zeynep Onen was the Alternate Chair from August 1993. She resigned from the position and 
returned to a full-time adjudicative role as a Vice-Chair in May 1996. The Alternate Chair 
position was still vacant at the end of the reporting period. 



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Workers' Compensation Appeals Tribunal 



Annual Report 1995 and 1996 



Members Representative of Employers 



Apsey, Robert 
Barbeau, Pauline 
Chapman, Stanley 
Copeland, Susan 
Jago, W. Douglas 
Meslin, Martin 
Nipshagen, Gerry 



December 11, 1985 
January 15, 1990 
July 16, 1990 
April 6, 1994 
October 1, 1985 
August 1, 1988 
June 15, 1989 



Part-time 



Vice-Chairs 

Alexander, Judith 
Coke, Robert 
Cummings, Mary Ellen 
Farrer, Jennifer Bradley 
Faubert, Marsha 
Flanagan, Willliam 
Harris, Daniel 
Hartman, Ruth 
Keil, Martha 
Kenny, Maureen 
Libman, Peter 
Marafioti, Victor 
McGrath, Joy 
Mole, Ellen 
Newman, Elaine 
Renault, Audrey 
Robeson, Virginia 
Singh, Vara 2 
Stewart, Susan 
Sutherland, Sara 
Wacyk, Tanja 



January 31, 1996 
December 7, 1994 
June 8, 1994 
January 31, 1996 
December 10, 1987 
June 1, 1991 
April 15, 1991 
December 11, 1985 
February 16, 1994 
July 29, 1996 
February 14, 1996 
March 11, 1987 
December 10, 1987 
January 31, 1996 
March 16, 1995 
January 31, 1996 
March 15, 1990 
June 1, 1991 
May 14, 1986 
September 6, 1991 
June 8, 1994 



Members Representative of Workers 



Anderson, James 
Beattie, David 
Besner, Diane 
Felice, Douglas 
Ferrari, Mary 
Higson, Roy 
Klym, Peter 
Rao, Fortunato 
Timms, David 



May 4, 1995 
December 11, 1985 
January 13, 1995 
May 14, 1986 
May 14, 1986 
December 11, 1985 
May 14, 1986 
February 11, 1988 
May 4, 1995 



2 Vara Singh passed away on April 11, 1995. 



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Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Members Representative of Employers 

Donaldson, Joseph August 4, 1994 

Fay, Carole Ann August 4, 1994 

Howes, Gerald August 1, 1989 

Robb, C. James June 2, 1993 

Ronson, John December 11, 1985 

Seguin, Jacques January 1, 1990 

Shuel, Robert August 1, 1989 

Young, Barbara February 17, 1995 



VICE-CHAIRS AND MEMBERS - 

EXPIRED APPOINTMENTS AND RESIGNATIONS 

The following is a list of Order-in-Council appointments who resigned or 
whose appointments expired during 1995 and 1996. 

Hartman, Ruth 
Stewart, Susan 
Wacyk, Tanja 

VICE-CHAIRS AND MEMBERS - REAPPOINTMENTS 

Bigras, Jean Guy December 17, 1996 

Cook, Mary November 1, 1996 

Faubert, Marsha December 10, 1996 

Felice, Douglas May 14, 1995 

Ferrari, Mary May 14, 1995 

Howes, Gerald August 1, 1995 

Jackson, Faith November 1, 1996 

Kenny, L. Maureen July 29, 1996 

Klym, Peter May 14, 1995 

McGrath, Joy December 10, 1996 

Mclntosh-Janis, Faye May 14, 1995 

Newman, Elaine March 16, 1995 

Nipshagen, Gerry June 15, 1995 

Seguin, Jacques July 1, 1995 

Shartal, Sarah November 1, 1996 

Shuel, Robert August 1, 1995 



NEW APPOINTMENTS DURING 1995 AND 1996 

Judith Alexander 

(Part-time Vice-Chair) January 1996 

Ms. Alexander has a Ph.D. in economics, a university teaching career, and 
six years of adjudicative experience as a member of the Copyright Board of 



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Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Canada. She is bilingual and provides support to our capacity of holding 
hearings in the French language. She resides in Ottawa and brings an 
out-of-Toronto perspective to the Tribunal's work. 



James Anderson 

(Part-time Member Representative of Workers) May 1995 

Mr. Anderson was previously the Director of the Ontario Region of the 
Canadian Union of Public Employees where his responsibilities included the 
administration and coordination of CUPE activities throughout Ontario. 

Diane Besner 

(Part-time Member Representative of Workers) January 1995 

Ms. Besner is a regional representative in the Ottawa office of the Workers' 
Health and Safety Centre, where her duties include being a liaison 
representative for several unions and organizing and coordinating the delivery 
of WHSC training and information services to unions. She is fully bilingual. 

Jennifer Bradley Farrer 

(Part-time Vice-Chair) January 1996 

Ms. Farrer is a lawyer, called to the bar in 1981, who came to the Tribunal 
with six years of experience as a personal injury lawyer with a Toronto law 
firm. Her legal experience in the personal injury field is, of course, of direct 
relevance to the work of the Tribunal. 



Peter Libman 

(Part-time Vice-Chair) February 1996 

Mr. Libman is a lawyer, called to the bar in 1974, who earned an LL.M. 
degree from Osgoode Hall Law School in 1990. He was counsel to the Morand 
Commission in 1975, and was closely associated with the Landlord's Self Help 
Centre for a number of years. He was an adjudicator with the Rent Review 
Hearings Board from 1992, until it was disbanded. 

Ellen Mole 

(Part-time Vice-Chair) January 1996 

Ms. Mole was called to the bar in 1983. She has substantial experience in the 
employment law field, including three years of experience as an arbitrator and 
mediator. She is also the author of a number of well-known publications on 
wrongful dismissal. 



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Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Audrey Renault 

(Part-time Vice-Chair) January 1996 

Ms. Renault is a bilingual resident of Ottawa who was a Vice-Chair at the 
Social Assistance Review Board from 1988 to 1994, where her work often involved 
the adjudication of disability claims. Prior to this, she was a community legal 
worker in Ottawa. She provides reinforcement for our bilingual services. 

David Timms 

(Part-time Member Representative of Workers) May 1995 

Mr. Timms was employed at Stelco Inc., for over 30 years. He was a union 
representative where his duties included representing injured workers in their 
compensation claims. 



Barbara Young 

(Part-time Member Representative of Employers) February 1995 

Ms. Young has been an Occupational Health and Safety Nurse with several 
companies and has 10 years in-plant experience in health and safety and 
workers' compensation matters from a management perspective. 

SENIOR STAFF 

The following is a list of the senior staff who were employed at the Tribunal 
during the reporting period. 

Linda Moskovits Chief Information Officer 

Beverley Pavuls Chief Administration Officer 

Carole Prest Counsel to the Tribunal Chair 

Eleanor Smith Tribunal General Counsel 

Peter Taylor Manager, Financial Administration 



MEDICAL COUNSELLORS 

The following is a list of the Tribunal's Medical Counsellors. 

Dr. John D. Atcheson Psychiatry 

Dr. Douglas P. Bryce Otolaryngology 

Dr. Ross Fleming Neurosurgery 

Dr. W. Robert Harris Orthopaedic Surgery 

Dr. Robert L. MacMillan Internal Medicine 

Dr. John S. Speakman Ophthalmology 

Dr. Neil Watters General Surgery 

Dr. John D. Atcheson joined the Tribunal as a Counsellor on Psychiatry effective 
January 1, 1995. He replaced Dr. Fred Lowy, who left to pursue a sabbatical abroad. 



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Workers' Compensation Appeals Tribunal Annual Report 1995 and 1996 



Appendix E 



WORKERS' COMPENSATION APPEALS TRIBUNAL 

REPORT AND FINANCIAL STATEMENTS 
December 31, 1995 

Auditors' Report 

To the Workers' Compensation Appeals Tribunal 

We have audited the balance sheet of the Workers' Compensation Appeals 
Tribunal as at December 31, 1995 and the statements of recoverable 
expenditures and Workers' Compensation Board funding for the year then 
ended. These financial statements are the responsibility of the Tribunal's 
management. Our responsibility is to express an opinion on these financial 
statements based on our audit. 

We conducted our audit in accordance with generally accepted auditing 
standards. Those standards require that we plan and perform an audit to obtain 
reasonable assurance whether the financial statements are free of material 
misstatement. An audit includes examining, on a test basis, evidence supporting 
the amounts and disclosures in the financial statements. An audit also includes 
assessing the accounting principles used and significant estimates made by 
management, as well as evaluating the overall financial statement presentation. 

In our opinion, these financial statements present fairly, in all material 
respects, the financial position of the Workers' Compensation Appeals Tribunal 
as at December 31, 1995 and the results of its operations and Workers' 
Compensation Board funding for the year then ended in accordance with the 
accounting policies described in Note 2 of the financial statements. 

Deloitte & Touche 
Chartered Accountants 
Toronto, Ontario 
May 24, 1996 



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Workers 7 Compensation Appeals Tribunal Annual Report 1995 and 1996 



BALANCE SHEET 
December 31, 1995 

1995 1994 
ASSETS 

Cash $ 646,500 $ - 

Receivable from Workers' Compensation Board 2,050,500 3,051,300 

Salaries and wages recoverable (Note 3) 154,000 114,400 

Advances 11,000 22,600 

$2,862,000 $3,188,300 
LIABILITIES 

Bank indebtedness $ - $ 362,900 

Accounts payable and accrued liabilities 1,462,000 1,425,400 
Operating advance from 

Workers'Compensation Board (Note 4) 1,400,000 1,400,000 

$2,862,000 $3,188,300 



Approved on behalf of the Workers' Compensation Appeals Tribunal 
S.R. Ellis, Chairman 



STATEMENT OF RECOVERABLE EXPENDITURES 
Year ended December 31, 1995 



Salaries and wages 

Employee benefits 

Transportation and communication 

Services 

Supplies and equipment 

Social contract commitment 

Total operating expenditures 

Capital expenditures 

Total recoverable expenditures 



1995 


1994 


$ 6,757,300 


$ 6,417,400 


1,182,000 


1,086,300 


497,600 


395,800 


3,228,900 


2,891,100 


229,300 


252,600 


327.700 


327.700 


12,222,800 


11,370,900 


81.600 


39.600 


$12,304,400 


$11,410,500 



72 



1995 


1994 


$12,304,400 


$11,410,500 


13,305,200 


11,012.300 


(1,000,800) 


398,200 


3,051,300 


2,653,100 


$ 2,050,500 


$ 3,051,300 



Workers 1 Compensation Appeals Tribunal Annual Report 1995 and 1996 



STATEMENT OF WORKERS' COMPENSATION BOARD 

FUNDING 

Year ended December 31, 1995 



Recoverable expenditures 
Reimbursement from 

Workers' Compensation Board 
Change in receivable from 

Workers' Compensation Board 

Receivable from Workers' Compensation Board, 
beginning of year 

Receivable from Workers' Compensation Board, 
end of year 



NOTES TO THE FINANCIAL STATEMENTS 
December 31, 1995 

1. General 

The Workers' Compensation Appeals Tribunal ("Tribunal") was created by 
the Workers' Compensation Amendment Act. S.0. 1984, Chapter 58 - Section 
32, which came into force on October 1, 1985. 

The purpose of the Tribunal is to hear, determine and dispose of in a fair, 
impartial and independent manner, appeals by workers and employers of 
decisions, orders or rulings of the Workers' Compensation Board, and any 
matters or issues expressly conferred upon the Tribunal by the Act. 

2. Significant Accounting Policies 

The Tribunal's financial statements are prepared in accordance with 
generally accepted accounting principles except for capital expenditures which 
are charged to expense in the year of acquisition. 

3. Salaries and Wages Recoverable 

Certain employees are on secondment with the Ministry of Community, 
Social Services of the Government of Ontario and the Society of Ontario 
Adjudicators and Regulators and their remuneration is recoverable. 

4. Operating Advance from Workers' Compensation Board 

The operating advance is interest-free with no specific terms of repayment. 



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